AW    BOOlTs 

57  So.  Spring  St.,  Rodi^  210 
MUtual  4473 


//   / 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


-> 


so 


POMEROY'S 

EQUITY  JURISPRUDENCE 

AND 

EQUITABLE  REMEDIES 

SIX  VOLUMES. 


POMEROY'S 

EQUITY  JURISPRUDENCE, 

IN  FOUR   VOLUMES. 

By  JOHN  NORTON  POMEROY,  LJj.D. 
THIRD  EDITION,  ANNOTATED  AND  MUCH  ENLARGED, 

AND  SUPPLEMENTED  BY 

A  TREATISE  ON  EQUITABLE  REMEDIES, 

IN  TWO  VOLUMES. 

By  JOHN  NORTON  POMEROY,  Jb. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY     COMPANY, 

Law  Publishbes  and  Lat?  Booksellers. 
1905. 


A  TREATISE 


EQUITY  JURISPRUDENCE, 


AS   ADMINISTERED   IN 


THE  UNITED  STATES  OF  AMERICA: 

ADAPTED  FOR  ALL  THE  STATES, 

AND 

TO  THE  UNION  OF  LEGAL  AND  EQUITABLE   REMEDIES 

UNDER  THE  REFORMED  PROCEDURE. 


By  JOHN  NOETON  POMEROY,  LL.D. 

II' 


THIRD  EDITION, 

BY 

JOHN  NORTON  POMEROY,  Jr.,  A.M.,  LL.B. 
IN  FOUR  VOLUMES. 

Vol.    I. 


SAN  FRANCISCO: 
BANCEOFT-WHITNEY     COMPANY, 

Law  Publishers  and  Law  Booksellers. 

1905. 


/ 
f  '1  '1  )  Y  e. 


Entered   according   to   act   of   Congress    in   the   years    1881, 

1882,  and  1883,  by 

JOHN  NORTON  PO:\rEROY, 

In  the  office  of  the  Librarian   of  Congress,  at   vVashington. 


Entered  according  to  act  of  Congress  in  the  year   1892,  by 

ANNIE  R.  POMEROY, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,   1905, 

By  carter  p.  POMEROY,  HARRIET  H.  THOMPSON, 

AND  JOHN  NORTON  POMEROY,  Jb. 


TO 

STEPHEN    J.    FIELD,    LL.D., 

ONE   OF  THE  ASSOCIATE  JUSTICES   OF   THE   SUPREME   COURT 
OF  THE  UNITED  STATES: 

NOT  ONLY  AS  A  TRIBUTE  TO  HIS  EMINENT  PUBLIC  SERVICES  IN  THE  MOST  AUGUST 
TRIBUNAL    OF    ANY    MODERN    NATION,    BUT    ALSO    AS    AN    ACKNOWL- 
EDGMENT  OF    HIS    PRIVATE   FRIENDSHIP,    AND   OF    THE 
author's   ESTEEM   AND   RESPECT, 

THIS    WORK    IS    DEDICATED. 


667G35 


PREFACE  TO  THE  THIRD  EDITION. 


An  edition  of  a  standard  text-book  in  double  the  number  of 
volumes  of  the  first  edition  appears  to  call  for  some  explanation, 
if  not  apology.  The  motives  which  induced  the  present  editor  to 
add  to  his  father's  work,  by  way  of  an  attempt  to  carry  out  and  com- 
plete the  original  scheme  of  that  work,  the  two  volumes  on  "  Equi- 
table Remedies  ",  are  stated  in  the  preface  to  those  volumes.  It  was 
found,  when  the  editing  of  the  remaining  parts  of  the  work  was 
taken  up,  that  an  adequate  statement  of  the  twelve  years'  growth 
of  their  many  topics  would  swell  the  three  volumes,  already  bulky, 
to  an  inconvenient  size ;  and  it  further  appeared  that  in  a  large 
range  of  these  topics  a  treatment  less  general  and  elementary  than 
the  autJior's  limits  of  space  allowed  would  more  truly  represent 
their  present  relative  importance.  The  editor  has  therefore, — 
while  supplying  all  portions  of  the  book  with  citations  much 
more  numerous  than  those  added  in  the  second  edition, —  under- 
taken to  annotate  at  considerable  length,  drawing  upon  the  older 
as  well  as  the  latest  cases,  such  subjects  as,  e.  g.  the  Equity  Juris- 
diction of  the  United  States  Courts ,  many  topics  in  the  chapters 
on  Notice,  Priorities,  and  Bona  Fide  Purchase ;  and  many  in  the 
law  of  Trusts.  The  subject  of  the  Jurisdiction  to  avoid  Multi- 
plicity of  Suits,  which  the  author  was  the  first  to  treat  in  a 
manner  and  to  an  extent  adequate  to  its  intrinsic  importance,  has 
had  an  astonishing  growth  under  the  impetus  given  by  his  well 
known  chapter;  in  presenting,  in  some  detail,  the  result  of  this 
growth,  the  editor  has  ventured  to  add  two  paragraphs  (§§  251^, 
251f )  to  the  text,  for  the  purpose  of  emphasizing  and  illustrating 
an  important  limiting  principle,  which  had,  indeed,  been  rec- 
<^nized  by  the  author,  but  has  only  come  into  prominence  in 
recent  years.  With  this  one  exception  no  new  paragraphs  have 
iDeen  interpolated ;  the  author's  text  and  notes  have  been  left 
as  they  were  written,  the  editor  believing  that  the  peculiarly 
authoritative  character  conceded  by  the  courts  to  that  text 
required  that  no  chance  should  be  afforded  of  confusing  the 
author's   language   with   his    own.     The   results   of   the   editor's 

[vii] 


Viii  PREFACE    TO    THE    THIRD    EDITION. 

labor  —  which  has  included  a  careful  re-examination  of  all  the- 
cases  added  in  the  second  edition,  —  have,  therefore,  been  cast 
into  a  series  of  separate  notes,  distinguished  from  the  author's 
notes  by  reference  letters  instead  of  numerals.  The  reader's 
attention  has  been  called  to  several  thousands  of  cases  citing  or 
quoting  the  text;  from  the  number  of  these  some  notion  may  be 
obtained  of  the  extent  to  which  the  author's  statements  have  been 
accepted  as  authority. 

An  editorial  task  involving  the  reading  of  tens  of  thousands  of 
cases  can  rarely  be  accomplished  single  handed.  The  editor  desires 
to  acknowledge  his  indebtedness  to  his  painstaking  assistants,  Mr. 
F.  W.  Doan,  now  of  Tucson,  Ariz.,  and  Mr.  E.  S.  Page,  of  Oak- 
land, C-al.  The  chapter  on  Trusts  (excepting  Charitable  Trusts) 
was  for  the  most  part  annotated  by  Mr.  Doan  ;  as  to  the  rest  of  the 
editorial  notes,  it  may  be  said  in  general  that  those  in  Vol.  Ill 
are  chiefly  Mr.  Page's  work,  those  in  Vols.  I  and  II,  and  all  those 
stating  the  results  of  English  cases,  are  chiefly  the  editor's. 

Pomeroy's  Equity  Jurisprudence  was  written  at  a  fortunate 
time, —  a  time  almost  coincident  with  the  completion  of  the 
labors  of  Jessel  and  others  of  that  brilliant  group  of  English 
Chancery  Judges  of  the  seventh  and  eighth  decades  of  the  last 
century,  whose  restatements  of  the  doctrines  and  principles  of 
Equity  amounted  almost  to  a  re-creation.  It  is  hardly  too  much  to 
say,  that  the  author  accomplished  the  same  result  for  large  parts 
of  the  equity  jurisprudence  in  this  country.  Few  law  books 
in  any  field  have  been  relied  on  by  American  Courts  in  the  last 
twenty  years  with  anything  like  the  same  frequency.  The  in- 
stances are  rare  in  which  the  author's  conclusions  on  debatable 
questions  have  not  been  accepted,  almost  without  dispute.  The 
hope  oamestly  expressed  in  his  preface,  that  his  work  "  may 
maintain  the  equity  jurisprudence  in  its  true  position  as  a  con- 
Ptltuf-nt  piirt  of  the  municipal  law"  appears  to  have  been  abund- 
antly fulfilled.  J.  2^-.  P.,  Jb. 

SA.t  Fbancibco,  March,  1006. 


PREFACE  TO  THE  SECOND  EDITION 


The  author  of  this  treatise  departed  this  life  so  soon  after 
the  publication  of  the  first  edition^  that  he  had  no  opportunity 
to  do  anything  in  the  way  of  preparation  for  this  edition.  By 
a  testamentary  request,  he  charged  that  work  upon  the  present 
editors.  This  duty  the  editors,  with  filial  reverence,  have  per- 
formed to  the  best  of  their  ability,  and  now  submit  the  result 
of  their  labors  to  the  profession. 

In  the  preparation  of  this  edition,  a  careful  examination  has 
been  made  of  all  the  cases  —  English  and  American  —  which 
have  appeared  since  the  publication  of  the  first  edition,  involv- 
ing matters  falling  within  the  scope  of  this  work.  These  cases 
are  upwards  of  eight  thousand  in  number.  In  gathering  this 
large  mass  of  material,  the  editors  have  not,  in  any  instance, 
made  use  of  the  often  fallible  assistance  of  the  digests,  but  have 
gone  directly  to  the  reports.  A  considerable  proportion  of  the 
material  thus  gathered  has,  of  course,  been  discarded,  as  in- 
volving merely  the  enunciation  of  familiar  doctrines ;  but  the 
nearly  universal  desire  among  members  of  the  legal  profession 
to  be  giiided  by  the  latest  authority  has  generally  been  re- 
spected. While  it  has  not  been"  found  necessary  or  desirable 
to  add  to  or  alter  the  text,  except  for  the  purpose  of  correcting 
a  few  typographical  errors,  the  editors  have  not  confined  their 
labors  to  the  mere  enumeration  of  recent  decisions.  Without 
attempting  to  enlarge  the  general  scope  of  the  work,  whose 
contents  are  so  well  known,  it  has  been  found  possible  to  give 
a  treatment  considerably  more  in  detail  of  many  important  topics. 
It  is  also  hoped  that  the  insertion  of  numerous  cross-references 
will  prove  to  be  a  material  convenience  in  the  use  of  the  book. 
In  order  that  those  who  make  use  of  this  edition  may  be  able 
to  distinguish  between  the  work  of  the  author  and  that  of  the 
present  editors,  all  the  new  matter  inserted  in  this  edition  has 
been  inclosed  within  brackets. 

[ixl 


X  PREFACE  TO  THE  SECOND  EDITION. 

In  submitting  this  result  of  their  labors  to  the  legal  profes- 
sion, the  editors  desire  to  express  the  hope  that  they  will  be 
found  to  have  done  nothing  to  impair  the  original  character  of 
their  father's  work,  or  to  lower  the  high  place  which  it  has 
found  in  the  estimation  of  the  Bench  and  Bar. 

C.    P.    POMEROY. 

J.  N.  p.,  Jb. 

BiJV  FiAif CISCO,  April,  1892. 


PREFACE. 


The  author  herewith  submits  to  the  legal  profession  a  text- 
book which  treats,  in  a  somewhat  comprehensive  manner,  of  the 
equitable  jurisdiction  as  it  is  now  held  by  the  national  and  state 
tribunals,  and  of  the  equitable  jurisprudence  as  it  is  now  adminis- 
tered by  the  courts  of  the  United  States,  and  of  all  those  states 
in  which  the  principles  of  equity,  originally  formulated  by  the 
English  Court  of  Chancery,  have  been  adopted  and  incorporated 
into  the  municipal  law.  It  is  proper  that  he  should,  in  a  few 
words,  explain  the  motives  which  led  to  the  preparation  of 
such  a  work,  and  describe  the  plan  which  he  has  pursued  in  its 
composition. 

While  the  supreme  court  of  judicature  act  was  pending  be- 
fore the  British  Parliament,  there  appeared  in  the  Saturday 
Review  a  series  of  articles  written  by  one  of  the  ablest  lawyers 
and  most  profound  thinkers  of  the  English  bar,  which  pointed 
out  a  grave  danger  threatening  the  jurisprudence  of  England 
in  the  plan,  as  then  proposed,  for  combining  legal  and  equi- 
table rights  and  remedies  in  the  same  action,  and  administering 
them  by  the  same  tribunal.  The  writer  showed,  as  the  in- 
evitable result  of  the  system,  that  equitable  principles  and  doc- 
trines would  gradually  be  suppressed  and  disappear  in  the  ad- 
ministration of  justice;  that  they  Avould  gradually  be  displaced 
and  supplanted  by  the  more  inflexible  and  arbitrary  rules  of  the 
law;  until  in  time  equity  would  practically  cease  to  be  a  dis- 
tinctive branch  of  the  national  jurisprudence.^     The  reasoning 

1  The  reality  of  the  danger,  and  the  importance  of  the  legislative  enactment 
by  which  it  was  averted,  are  most  unmistakably  shown  in  the  current  series 
of  English  reports.  Able  common-law  judges,  taking  a  part  in  the  decision 
of  equity  causes,  are  frequently  represented  as  attacking,  and  even  denouncing, 
equitable  principles  and  doctrines  which  have  for  centuries  been  treated  by 
the  court  of  chancery  as  fundamental  and  elementary, —  principles  which 
have  been  most  fruitful  in  results,  and  have  been  applied  in  numberless  forms 
to  the  equity  jurisprudence.  Can  there  be  a  doubt  that  equity,  exposed  to 
such  judicial  attacks  from  members  of  the  highest  court,  would  gradually 
have  succumbed,  and  finally  ceased  to  be  a  distinctive  part  of  the  Eaglish 
municipal  law? 

[xil 


xii  PREFACE. 

of  these  remarkable  articles  was  so  cogent  and  convincing  that 
it  produced  a  deep  impression,  not  only  upon  the  English  bench 
and  bar,  but  even  upon  Parliament,  and  it  ultimately  led  to  an 
amendment  of  the  act  by  the  addition  of  the  following  clause, 
which  has  undoubtedly  averted  the  anticipated  danger :  "  Gen- 
erally, in  all  matters  in  which  there  is  any  conflict  or  variance 
between  the  rules  of  equity  and  the  rules  of  the  common  law  with 
reference  to  the  same  matter,  the  rules  of  equity  shall  prevail." 

I  have  referred  to  this  incident  simply  for  the  purpose  of  in- 
dicating its  application,  under  like  circumstances,  to  the  law  of 
our  own  country.  The  arguments  of  the  English  essayist  were 
purely  a  'priori,  and  were  confined  to  the  judicial  system  of 
England.  They  would  apply  with  equal  force  to  a  large  por- 
tion of  the  American  states ;  and  the  correctness  of  his  conclu- 
sions is  established  by  the  judicial  experience  of  those  common- 
wealths during  the  past  thirty  years.  Since  the  first  New  York 
Code  of  Practice  in  1848,  about  one  half  of  the  states  and  ter- 
ritories have  adopted  the  Reformed  Procedure.  As  the  central 
conception  of  this  system  is  the  abolition  of  all  external  dis- 
tinctions between  actions  at  law  and  suits  in  equity,  the  union 
of  legal  and  equitable  rights  and  remedies  in  one  proceeding, 
and  the  substitution  of  many  important  equitable  in  place  of 
legal  methods,  it  was  confidently  supposed  that  in  progress  of 
time  the  doctrines  of  equity  Avould  obtain  a  supremacy  over 
those  of  the  law  in  the  administration  of  justice,  and  that  the 
entire  jurisprudence  of  a  state  Avould  gradually  become  more 
equitable,  more  informed  with  equitable  notions.  It  must  be 
confessed,  I  think,  that  the  experience  of  the  past  thirty  years 
in  these  states  points  to  a  directly  contrary  result.  Every  care- 
ful observer  must  admit  that  in  all  the  states  which  have  adopted 
the  Reformed  Procedure  there  has  been,  to  a  greater  or  less 
degree,  a  weakening,  decrease,  or  disregard  of  equitable  prin- 
ciples in  the  administration  of  justice.  I  would  not  be  misun- 
derafood.  There  has  not,  of  course,  been  any  conscious  inten 
tional  alirogatinn  or  rejection  of  equity  on  the  part  of  the  courts. 
Tlio  triideiify,  liowovcr,  has  plainly  and  steadily  been  towards 
thf  /,nvirig  an  hikIiic  prominence  and  superiority  to  purely  legal 
rules,  and  flio  ignoring,  forgetting,  or  suppression  of  equitable  no- 
tionH.  The  eorreetness  of  tliis  eonelusion  cannot  be  questioned  nor 
d'.uhfefl  ;  the  eon^rtiting  testimony  of  able  lawyers  who  have 
practiced  under  hoth  systems  corroborates  it ;  and  no  one  can  study 


PREFACE.  Xlll 

the  current  series  of  state  reports  without  perceiving  and  ac- 
knowledging its  truth.  In  short,  the  principles,  doctrines,  and 
rules  of  equity  are  certainly  disappearing  from  the  municipal 
law  of  a  large  number  of  the  states,  and  this  deterioration  will  go 
on  until  it  is  checked  either  by  a  legislative  enactment,  or  by  a 
general  revival  of  the  study  of  equity  throughout  the  ranks  of 
the  legal  profession. 

I  would  not  be  understood  as  condemning  the  Reformed  Pro- 
cedure on  this  account.  The  tendency  which  I  have  mentioned 
may  be  checked ;  the  danger  is  incidental,  and  can  easily  be 
prevented.  A  brief  legislative  enactment,  substantially  the  same 
as  that  added  to  the  English  Judicature  Act,  would  render  the 
system  perfect  in  theory,  and  would  secure  to  equity  the  life 
and  prominence  which  properly  belong  to  it,  and  which  should 
be  preser\'ed.  The  state  of  Connecticut  has  incorporated  the 
clause  into  its  recent  reformatory  legislation ;  that  it  should  not 
have  been  added  to  all  the  Codes  of  Procedure  is  very  surprising. 

I  need  not  dwell  upon  the  disastrous  consequences  of  the  tend- 
ency above  described,  if  it  should  go  on  to  its  final  stage.  Even 
a  partial  loss  of  equity  would  be  a  fatal  injury  to  the  jurispru- 
dence of  a  state.  So  far  as  equitable  rules  differ  from  those  of  the 
law,  they  are  confessedly  more  just  and  righteous,  and  their  dis- 
appearance would  be  a  long  step  backward  in  the  progress  of 
civilization. 

It  is  of  vital  importance,  therefore,  that  a  treatise  on  equity 
for  the  use  of  the  American  bar  should  be  adapted  to  the  ex- 
isting condition  of  jurisprudence  throughout  so  large  a  part  of 
the  United  States.  It  should  be  based  upon,  and  should  pre- 
sent in  the  clearest  light,  those  principles  which  lie  at  the  founda- 
tion of  equity,  and  which  are  the  sources  of  its  doctrines  and 
rules.  In  this  respect,  the  plan  of  th^  present  w^ork  w^as  deliber- 
ately chosen,  and  has  been  steadily  pursued,  even  when  it  has  led 
to  amplifications  which  might,  perhaps,  be  regarded  by  some 
eaders  as  unnecessary.  It  has  been  my  constant  endeavor  to 
)resent  the  great  underlying  principles  which  sustain  the  whole 
mperstructure  of  equity,  and  to  discuss,  explain,  and  illustrate 
them  in  the  most  complete  manner.  Some  of  these  principles 
'ire  sc  comprehensive  and  fruitful,  that  one  who  has  grasped  them 
in  their  fullness  of  conception  has  already  mastered  the  system 
of  equity ;  all  else  is  the  mere  application  of  these  grand  tn^ths 
to  particular  circumstancea. 


XIV  PEEFACE. 

Such  a  treatise,  designed  for  the  American  profession,  if  it 
would  at  all  meet  and  satisfy  the  needs  of  the  bench  and  bar, 
must  also  be  based  upon  and  adapted  to  the  equitable  juris- 
diction which  is  actually  possessed  by  the  state  and  national 
courts,  and  the  equitable  jurisprudence  which  is  actually  ad- 
ministered by  them.  It  must  recognize  the  existing  condition, 
both  of  law  and  equity,  the  limitations  upon  the  chancery  juris- 
diction resulting  from  varying  statutes,  and  the  alterations  made 
by  American  legislation,  institutions,  and  social  habits.  Many 
departments  of  equity,  many  doctrines  and  modes  of  applying 
the  jurisdiction  which  were  important  at  an  earlier  day,  and  are 
perhaps  still  prominent  in  England,  have  become  practically 
obsolete  in  this  country;  while  others  have  risen  in  consequence, 
and  are  constantly  occupying  the  attention  of  the  courts.  It  has 
been  my  purpose  and  endeavor  to  discuss  and  describe  the  equity 
jurisprudence  as  viewed  in  this  light,  and  to  present  the  actual 
system  which  is  now  administered  by  the  courts  of  the  United 
States  and  of  all  the  states.  As  an  illustration,  I  have  attempted 
to  ascertain  and  determine  the  amount  of  jurisdiction  held  by  the 
different  state  tribunals,  as  limited  and  defined  by  statutes, 
and  established  by  judicial  interpretation ;  and  have  not  confined 
the  treatment  of  this  subject  to  a  mere  account  of  the  general 
jurisdiction  possessed  by  the  English  Court  of  Chancery.  It 
is  true  that  the  fundamental  principles  are  the  same  as  those 
which  were  developed  through  the  past  centuries  by  the  English 
chancery;  but  the  application  of  these  principles,  and  the  par- 
ticular rules  which  have  been  deduced  from  them,  have  been 
shaped  and  determined  by  the  modern  American  national  life, 
and  have  received  the  impress  of  the  American  national  char- 
acter. It  has  been  my  design,  therefore,  to  furnish  to  the  legal 
profession  a  treatise  which  should  deal  with  the  equity  juris- 
diction and  jurispnidence  as  they  now  are  throughout  the  United 
States;  with  tlicir  statutory  modifications  and  limitations,  and 
under  their  different  types  and  forms  in  various  groups  of  states; 
and  thus  to  ])re])are  a  work  which  would  be  useful  to  the  bench 
and  bar  in  all  j)arts  of  our  country.  During  its  composition  I 
have  constantly  had  before  me  a  high  ideal.  The  difficulty  in 
carrying  out  this  conception  has  been  very  great;  the  labor  which 
it  ha.s  required  has  been  enormous.  That  I  may  have  fallen  short 
of  thiH  ideal  in  nil  its  completeness  and  perfection,  I  am  only  too 
fonacious;  its  full  realization  was  perhaps  impossible.     If  the  book 


PREFACE,  XV 

shall  be  of  any  lielp  to  the  courts  and  the  profession  in  administer- 
ing equitable  doctrines  and  rules ;  if  it  shall  be  of  any  assistance 
to  students  in  disclosing  the  grand  principles  of  equity ;  if  it  shall 
to  any  extent  maintain  the  equitable  jurisprudence  in  its  true 
position  as  a  constituent  part  of  the  municipal  law, —  then  the 
time  and  labor  spent  in  its  composition  will  be  amply  repaid. 

The  internal  plan,  the  system  of  classification  and  arrange- 
ment, the  modes  oi  treatment,  and  especially  the  reasons  for  de- 
parting from  the  order  and  methods  which  have  usually  been 
followed  by  text-writers,  are  described  at  large  in  the  third, 
fourth,  and  fifth  sections  of  the  Introductory  Chapter.  To  that 
chapter  I  would  respectfully  refer  any  reader  who  may  at  the- 
outset  desire  a  full  explanation  of  these  matters,  which  are  so 
important  to  a  full  understanding  of  an  author's  purposes,  and 
to  a  correct  appreciation  of  his  work.  The  book  is  submitted 
to  the  profession  with  the  hope  that  it  may  be  of  some  aid  to 
them  in  their  judicial  and  forensic  duties,  and  may  accomplish 
something  for  the  promotion  of  justice,  righteousness,  and  equity 
in  the  legal  and  business  transactions  and  relations  of  society. 

Hastings  College  of  the  Law.  "  * 

San  Francisco,  May,  1881. 


TABLE  OF  CONTENTS, 


CONTENTS  OF  VOLUME  L 


INTRODUOTORY  CHAPTEE. 

SECTION  I. 

THE    ORIGIN    OF    EQUITY    JURISDICTION    AND    JXTBISFBUDEKOL 

§  1.  Object  of  this  introduction. 
§§  2-9.  2Equitas  in  the  Roman  law. 
5§   10-42.  Origin  of  Equity  in  the  English  law. 
|§   10-13.  Primitive  condition  of  the  law  and  the  courtsi. 
§§    14,  15.  Early  influence  of  the  Roman  law. 
§§   16-29.  Causes  which  made  a  court  of  equity  necessary. 
{§  21-23.  The  earliest  common-law  actions  and  procedura. 

§  24.  Statute  of  Edw.  I.  concerning  new  writs. 
8§  25-29.  Limited  results  of  this  legislation. 

{§  30—42.  Commencement  and  progress  of  the  chancery  jurisdiction. 
§  31.  Original  powers  of  the  King's  Council. 
§  32.  Original  common-law  jurisdiction  of  the  chancellor. 
i§  33-35.  Jurisdiction   of   grace  transferred   to   the   chancellor:      Statute   24 

Edw.  III. 
§!  36—39.  Development  of  the  equitable  jurisdiction. 

§  40.  Abolition  of  the  court  in  England,  and  in  many  of  the   American. 
States. 
IS  41,42.  Equity  jurisdiction  in  other  American  States. 

SECTION  II. 

THE    NATURE    OF    EQUITY. 

I  43.  Importance  of  a  correct  notion  of  Equity. 
If  44,45.  Various  meanings  given  to  the  word. 
II  46,47.  True  meaning  as  a  department  of  our  jurisprudence. 
§§  48-54.  Theories  of  the  early  chancellors  concerning  Equity  as  both  supply- 
ing and  correcting  the  common  law. 
II  55-58.  Sources    from    which    the   early   chancellors   took   their   doctrines; 

their  notions  of  "  conscience  "  as  a  ground  of  their  authority. 
\\  59^61.  Equity  finally  established  upon  a  basis  of  settled  principles. 

I  62.  How  the  equitable  jurisdiction  is  determined  at  the  present  day. 
tl  63-67.  Recapitulation:     Nature  of  Equity  stated  in  four  propositions. 

[xvii] 


XVUl 


TABLE    OF    CONTENTS. 


f  68. 

§  69. 

I{ 

70-88. 

§  70. 

1  71. 

§  72. 

if 

73,  74. 

§  75. 

S  76. 

1  77. 

§  78. 

l§ 

79,  80, 

§  81. 

s§ 

82,83. 

JS 

84-88. 

SECTION  III. 

THE  PKEISENT  RELATION  OF  EQUITY  WITH  THE  LAW. 

Importance  of  correctly  understanding  these  relations. 

Changes  in  the  relations  of  Equity  to  the  law  effected  partly  by 

statute  and  partly  by  decisions. 
Important  instances  of  such  changes  in  these  relations. 
In  legal  rules  concerning  the  effect  of  the  seal. 
Ditto  suits  on  lost  instruments. 
Ditto  forfeitures  and  penalties. 
Ditto  mortgages  of  land. 
In  statutes  concerning  express  trusts. 
Ditto  recording  and  doctrine  of  priorities. 
Ditto  administration  of  decedents'  estates. 
Ditto  jurisdiction  over  infants. 
Ditto  married  women's  property. 

In  statutory  restrictions  upon  the  equitable  jurisdiction. 
In  the  practical  abolition  gf  the  "  auxiliary  ''  jurisdiction. 
In  the  Reformed  Procedure  combining  legal  and  equitable  methods. 


SECTION  IV. 

THE  CONSTITUENT  PARTS  OF  EQtHTT. 

§  89.     Object   of  this   section. 
■{8  90,91.     Rights   are  either   "primary"  or  "remedial;"  each   described. 
§  92.     Divisions  of  "primary"   rights,   viz.,    1.   Those   concerned   with 
personal  status ;  2.  Those  concerned  with  things, 
18  93-95.     Two  general  classes  of  rights  concerned  with  things:  viz.,  "  real  " 

and  "personal;"  each  described. 
■88  90,97.     What  of  these  kinds  of  rights  are  embraced  within  equity:  both 

"  primary  "   and   "  remedial." 
{8  98-107.     I.  Equitable  primary  rights,  kinds  and  classes  of. 
IS   108-116.     II.  Equitable  remedial  rights,  kinds  and  classes  of, 

8   112.     General  clas.ses  of  equitable  remedies. 
it  113-110.     Mode  of  administering   them. 

8   116.     How  far  legal  and  equitable  modes  can  be  combined. 
8   117.     Recapitulation. 

SECTION  V. 

THE    PRINCIPLES    OF    CLASSIFICATION. 

Importance  and  difTieuKy  of  a  correct  classification. 
DilVcrcnt  grounds  wliicli  might  be  taken  for  a  classification. 
Ordinary  mode  of  clas.sirioafion  according  to  the  nature  of  the 

jurisdiction. 
In  the  tlircf  divisions  of  exclusive,  concurrent,  and  auxiliary. 
DifTfTcnt  modes  of  carrying  out  this  system  by  various  writers. 
Fundamental  objections  to  this  system  of  classification. 
TJic   fr\io  principlffl  of  classification  in  the  present  condition   of 

ofiiiity. 
I    128.    I'lnii   anil   onlir  of  arrangement  adopted   in   this  treatise. 


1 

118. 

11 

110, 

120. 

81 

121- 

-125. 

« 

121, 

88 

122, 

123. 

88 

124, 

125 

88 

120. 

127 

TABLE    OF    CONTENTS.  XIX 

PART  FIEST. 

•IHE  NATURE  AND  EXTENT  OF  EQUITY  JUKISDICTION. 

CHAPTER  FIRST. 

THE  GENERAl,  DOCTRINE  CONCERNING   THE  JURISDICTION. 

SECTION     I. 
niXDAlitENTAL    PRINCIPLES    AND    DIVISIONS. 

f   129.  Equity  jurisdiction  defined. 

S   130.  llequisites  in  order  that  a  case  may  come  within  it. 

S   131.  Distinction  between  the  existence  of  equity  jurisdiction,  and  the 
proper  exercise  of  it. 

§   132    Inadequacy  of  legal  remedies,  how  far  the  test. 

§   133.  Equity  jurisdiction  depends  on  two  facts  —  the  existence  of  equi- 
table interests,  and  the  inadequacy  of  legal  remedies. 
J8   134,  135.  How  far  the  jurisdiction  is  in  personam,  how  far  in  rem. 

§   136.  Equity   jurisdiction   threefold — exclusive,    concurrent,   and   aux- 
iliary. 
§§   137,138.  What  embraced  in  the  exclusive  jurisdiction. 
§§   139,  140.  What  embraced  in  the  concurrent  jurisdiction. 

§   141.  Cases  may  fall  under  both. 
§§    142-144.  What  embraced  in  the  auxiliary  jurisdiction. 

§   145.  Order  of  subjects. 

SECTION  II. 

THE  EXCLUSIVE  JURISDICTION. 

8   146.  Equitable  primary  rights  and  "  equities  "  defined. 
§8    147-149.  Equitable  estates  described. 

§  150.  Certain   distinctive   equitable   doctrines    forming   part   of  equity 
jurisprudence. 
§§   151-155.  Trusts  described. 

§   156.  Executors  and  administrators, 
f  §    157,  158.  Fiduciary  relations. 
8§   159,  160.  Married  women's  separate  property. 

§   161.  Estates  arising  from  equitable  conversion. 
fi   162,  163.  Mortgages  of  land. 

§   164.  Mortgages  of  personal  property. 
H   165-167.  Equitable  liens. 
§5   168,  169.  Estsites  arising  from  assignment  of  things  in  action,  possibilities, 

etc.,  and  from  an  equitable  assignment  of  a  fund. 
$8   170-172.  Exclusive  equitable  remedies  described. 

SECTION  III. 

THE    CONCURRENT    JURISDICTION. 

86   173,174.  What   embraced   in   the   concurrent   jurisdiction;    inadequacy   of 
legal  remedies  defined. 


XX  TABLE    OF    CONTENTS. 

f  175.  The  remedies  given  must  be  legal  in  their  nature. 
|§  176-179.  General   principle;    when  no  concurrent  jurisdiction   exists. 
{§   177,  178.  Examples  of  such  cases. 

§   179.  Where  a  law  court  has  first  taken  cognizance  of  a  case. 
§   180.  General  principle;  where  concurrent  jurisdiction  does  exist. 
§   181.  Rule  first.     Where  equity  has  jurisdiction  for  any  partial   pur- 
pose, it  may  retain  the  cause  for  all  purposes. 
§  182.  Eule  second.     Where  equity  originally  had  jurisdiction,  and  the 
law  subsequently  acquires  jurisdiction  over  the  same  matter, 
the  equity  jurisdiction  still  continues. 
§   183.  Effect  of  the  reformed  procedure  upon  the  equity  jurisdiction. 
5§   184-189.  Enumeration  of  the  principal  matters  over  which  the  concuirent 
jurisdiction  ordinarily  extends. 
§   185.  Suits  for  the  recovery  of  lands  and  of  chattels. 
§§   186-188.  Suits  for  pecuniary  recoveries. 

§   188.  Suits  arising  from  accident,  mistake,  or  fraud. 
§  189.  Other  special  cases. 

SECTION  IV. 

THE   AUXILIAEY  JURISDICTION'. 

8   190.  The  auxiliary  jurisdiction  defined. 
i§   191-209.  Of  discovery. 

§   191.  Definition  and  kinds  of  discovery. 
§   192.  Origin  of,  in  English  and  in  Roman  law. 
§§   193,  194.  Efl"cct  of  modern  legislation;  how  far  discovery  proper  has  been 
abolished  by  statutes. 
§   195.  General  doctrine;  when  discovery  will  or  will  not  be  enforced. 
{{   190,  197.  I.  What  judicial  proceedings,  in  what  courts,  will  be  aided   by 

discovery  in  equity. 
§§   198-200.  II.  The  parties;   their  situation   and  relations  to  each  other,  in 
order  that  a  discovery  may  be  granted. 
S   198.  The  plaintiff. 
§   199.  Tlie  defendant. 
§  200.  A  bona  fide  purchaser. 
II  201-207.  111.  The    nature,    subject-matter,    and    objects    of   the    discovory 
itself;    of  what   the   plaintiff  may  compel   discovery,   and   the 
defendant  must  make  discovery. 
i  201.  General  doctrine;  of  what  facts  discovery  will  be  compelled. 
S  202.  Of  what  kinds  of  facts  discovery  will  not  be  compelled. 
S  203.  What  is  privileged  from  discovery. 

§  204.  The  manner  in  which  the  defendant  must  make  discovery, 
IS  20.'>  207.  Production  and  inspection  of  documents. 

IV.  When,  liow  far,  and  for  whom  may  the  answer  in  the  di*- 

covrry  suit  be  used  as  evidence. 
How  fur  ttie  foregoing  rules  have  been  altered  by  statute, 
II  210  21.').  Of  the  examination  of  witnesses. 

TliJH  branch  of  the  jurisdiction  described. 
IS  211,212.   I.  Suit  to  perpetuate  testimony. 
Statnfory  modeH  Hiilistiluted. 


20.5 

207. 

i 

208. 

i 

200. 

210 

21.'-). 

i 

210. 

211. 

212. 

i 

212, 

TABLE    OF    CONTENTS.  TXJ 

fl  213-215.  n.  Suits  to  take  the  testimony  of  witnesses  de  bene  esse,  and  of 
witnesses  in  a  foreign  country. 
i  216.  Statutory  modes  substituted. 

CHAPTER  SECOKD. 

GENERAX    EITLES    FOR    THE    GOVERNMENT    OF    THE    JURISDICTION. 

SECTION    I. 
INADEQUACY    OF    LEGAL    REMEDIES. 

I  216.  Questions  to  be  examined  stated. 

I  217.  Inadequacy  of  legal  remedies  is  the  very  foundation  of  the  con- 
current jurisdiction. 

I  218.  Is  only   the  occasion   for  the  rightful   exercise  of  the   exclusive 
jurisdiction. 

I  219.  Operation  of  the  principle  upon  the  exclusive  jurisdiction;   does 
not  affect  the  first  branch,  which  deals  with  equitable  estates 
and  interests. 
f  I  220, 221.  Is   confined   to   the   second   branch,   which    deals   with    equitable 
remedies. 

i  222.  Summary   of  the   equity   jurisdiction   as   afifected  by   the  inade- 
qiiacy  of  remedies. 

SECTION  II. 

DISCOVEEY   AS    A    SOXJBCE   OE    OCCASION    OF   JUKIRDICTION. 

S  223.  General  doctrine  as  to  discovery  as  a  source  of  concurrent  and 
an  occasion  for  exclusive  jurisdiction. 
{§  224,  225.  Early  English  rule. 

§  226.  Present  English  rule. 
IS  227-229.  Broad  rule  established  in  some  American  States. 

§  229.  The  limitations  of  this  rule. 

S  230.  The  true  extent  and  meaning  of  this  rule  examined. 

SECTION  III. 

THK   DOCTRINE    THAT   JTrBISDICTION    EXISTING    OVEK    SOME    POBTION    OB    INCIDENT 
EXTENDS   TO   AND   EMBEACES   THE   WHOLE   SUBJECT-MATTEB    OB   CONTBOVEJiST. 

S  231.  The  doctrine  as  applied  in  the  concurrent  jurisdiction. 

§  232.  As  applied  in  the  exclusive  jurisdiction. 

§  233.  Limitations  on  the  doctrine. 
li  234-241.  Illustrations  of  the  doctrine. 

§  234.  In  cases  of  discovery. 

§  235.  In  cases  of  administration. 

§  236.  In  cases  of  injunction. 

§  237.  In  cases  of  waste,  nuisance,  damages. 
IS  238-241.  In  various  other  cases. 

I  242.  EflFect  of  the  reformed  procedure  on  the  doctrine. 


TXn  TABLE    OF    CONTENTS. 

SECTION  rv. 

THE  DOCTKIWE  THAT  JXJIUSDICTION  EXISTS  IN  ORDER  TO  PREVEWT  A  MULTIPLICm 

OF    SUITS. 

§  243.  The  doctrine  applies  to  both  kinds  of  jurisdiction. 
§  244.  The  questions  to  be  examined,  stated, 

§  245.  Four  possible  classes  of  cases  to  which  the  doctrine  may  apply. 
f  {  246-248.  "  Bills  of  peace,"  rationale  of,  and  examples. 

§  248.  Bills  "  to  quiet  title  "  explained. 
§§  249-251.  Rationale  of  the  doctrine  examined  on  principle. 

[§  251%.  Jurisdiction  not  exercised  when  that  would  be  ineffectual;   sim- 
plifying of  the  issues  essential. 
§  251%.  There  must  be  a  practical  necessity  for  the  exercise  of  the  juris- 
diction.] 
{§  252-261.  Examination  of  the  doctrine  upon  judicial  authority. 

§  252.  First  class. 
S§  253,  254.  Second  class. 
{§  255-261.  Third  and  fourth  classes. 

§  256.  Community  of  interest;  "Fisheries  case;"  "Case  of  the  Duties." 
§  257.  Where  proprietors  of  distinct  tracts  of  land   have  been  injured 

by  one  wrong. 
I  258.  Where  proprietors  of  distinct  tracts  of  land  have  been  relieved 
from  illegal  local  assessments. 
f  §  259, 260.  General   rule   as   to   relief   from   illegal    taxes,   assessments,   and 
public  burdens,  on  the  ground  of  multiplicity  of  suits. 
§  261.  Other  special  cases  of  the  third  and  fourth  classes. 
S§  262-266.  Examination  of  opposing  decisions;   conclusions  reached  by  such 
decisions. 
§  263.  In  the  first  and  second  classes. 
§8  264-266.  In  the  third  and  fourth  classes. 
§§  265,  266.  In  cases  of  illegal  taxes  and  other  public  burdens. 
§§  267-270.  Conclusions  derived  from  the  entire  discussion. 
§§  268-270.  Ditto  as  to  the  third  and  fourth  classes. 

S§  271-274.  Enumeration  of  cases  in  which  the  jurisdiction  to  avoid  a  multi- 
plicity of  suits  has  been  exercised. 
§  271.  Cases  of  the  first  class. 
S  272.  Cases  of  the  second  class. 
§  273.  Cases  of  the  third  class. 
5  274.  Cases  of  the  fourth  class. 
i  275.  The  jurisdiction  based  upon  statute. 

SECTION  V. 

THK  DOCTUINE  THAT  TUB  JUBFSnrCTION  ONCE  EXISTING  18  NOT  LOST  BECAUSE  THE 
COIJHTH    OK    LAW     HAVE    SUlt.Si:  JUKNIXY    ACQUIRED    A    LIKE    AUTUOUITY. 

fi   276.  Tlic  doctrine  is  ;i])]>lic(l  to  both  kinds  of  jurisdiction. 

IS   277,278.  Wlinre  the  jurisdiction  at  law  lias  been  enlarged  entirely  by  the 
action  of  tiie  law  courts. 

S  278.  Ditto,  exam  pics. 

II   279  281.  Where  the  jurisdiction  at  law  has  been  enlarged  by  statute. 

I  280.  Ditto,  fxaniiiicH. 

I  281.  VV'licrc  Huch  statute  destroys  the  previous  equity  jurisdiction. 


TABLE   OF    CONTENTS.  XXIU 


CHAPTER  THIRD. 

THB    JUEISDICTION    AS     HELD    BY    THE    COURTS     OF    THE    SEVEEAL 
STATES,   AND   BY   THE   COURTS   OF   THE   UNITED   STATES. 

SECTION   I. 
ABSTRACT  OF  LEGISLATIVE  PROVISIONS. 

S  282.  Source  of  jurisdiction,  both  legal  and  equitable,  of  the  courts  in 

the  American  States. 
{  283.  Division  of  the  States  into  four  classes  with  respect  to  the  amount 

of  equity  jurisdiction  given  to  their  courts. 
S  284.  The  first  class  of  States. 
§  285.  The  second  class  of  States. 
§  286.  The  third  class  of  States. 
«  287.  The  fourth  class  of  States. 
{  288.  Summary  of  conclusions. 

SECTION  II. 

THE   JUEISDICTION   AS   ESTABLISHED   BY   JUDICIAL   INTEBPRETATIOK. 

S  289.  The  questions  to  be  examined,  stated. 

§  290.  Diversity  of  statutory  interpretation  in  different  States, 
5§  291-298.  United  States  courts,  equity  jurisdiction  of. 

§  292.  First  principle:      Uniformity  of  jurisdiction. 

§  293.  Second  principle:     Identity  of  jurisdiction. 

§  294.  Third  principle:     Extent  of  the  jurisdiction, 

§  295.  Fourth  principle:     Inadequacy  of  legal  remedies. 
il  296,297.  Illustrations. 

§  297.  Ditto;  effect  of  State  laws  on  the  subject-matter  of  the  jurisdic- 
tion. 

§  298.  Territorial  limitations  on  the  jurisdiction. 
$§  299-341.  States  in  which  only  a  special  and  partial  jurisdiction  has  been 

given  by  statute. 
§§  299-310.  New  Hampshire. 
§§  311-S21.  Massachusetts. 
§§  322-337.  Maine. 
§§  338-341.  Pennsylvania, 
§§  342-352.  The  other  States  in  which  a  general  jurisdiction  has  been  given. 

.4  342.  What  States  are  included  in  this  division. 

§  343.  Questions  to  be  examined,  stated. 

§  344.  Interpretation  of  statute  limiting  the  jurisdiction  to  cases  for 
which  the  legal  remedy  is  inadequate. 

$  345.  General  extent  of  the  statutory  jurisdiction ;  the  States  arranged 
in  the  foot-note. 
S8  346-352.  How  far  this  equity  jurisdiction  extends  to  the  administration  of 
decedents'  estates. 

fi  347.  Probate  courts,  jurisdiction  and  powers  of. 


XXIV  TABLE    OF    CONTENTS. 

I  348.  Class   first:      The  ordinary   equity  jurisdiction  over   administra- 
tions expressly  abolished. 
§  349.  Class  second:     Such  jurisdiction  practically  abrogated  or  obsolete, 
§  350.  Class  third:      Such  jurisdiction  still  existing  and  actually  con- 
current. 
IS  351,352.  Special  subjects  of  equity  jurisdiction  connected  with  or  grow- 
ing out  of  administrations. 
§§  353-358.  States  which  have  adopted  the  reformed  system  of  procedure. 

§  354.  General  effect  of  this  procedure  on  the  equity  jurisdiction. 
IS  355-358.  Its  particular  effects  upon  equity. 

S  356.  On  certain  equitable  interests  and  rights. 

S  357.  On  certain  equitable  remedies. 

§  358.  On  the  doctrine  as  to  inadequacy  of  legal  remedies. 


PAET  SECOND. 

THE  MAXBIS  AND  GENERAL  PRINCIPLES  OF  EQUITY  JURISPRU- 
DENCE, AND  THE  EVENTS  WHICH  ARE  OCCASIONS  OF  EQUITABLE 
PRIilARY  OR  REMEDIAL  RIGHTS. 

PRELEVIINARY  SECTION. 

S  359.  Objects,   questions,   and   divisions,   stated, 
§  300.  Equitable  principles,  described. 
§  361.  Equitable  doctrines,  described. 
I  362.  Occasions  of  equitable  rights. 

CHAPTEE  FIRST. 

THE   FUNDAMENTAL   PRINCIPLES    OR   MAXIMS    OF   EQUITY. 

SECTION   L 
EQXJITY  REG.AJRDS  THAT  AS  DONE  WHICH  OUGHT  TO  BE  DONE. 

f  363.  List  of  equitable  maxims. 

S  304.  Equity  regards  as  done  what  ought  to  be  done;   its  importance. 
IS  305-377.  Its  true  meaning,  and  its  effects  upon  equitable  doctrines. 
SI  300-309.  Is  the  source  of  equitable  property  and  estates. 

§  300.  Sources  of  legal  property  or  titles  described. 

S  307.  Effect  of  an  executory  contract  at  law. 

S  308.  Effect  of  an  executory  contract  in  equity. 

8  30!).  Sources  of  all  kinds  of  equitable  property  described. 
II  370-370.  Tlic  equitable  estates  which  are  derived  from  this  principle. 

S  371.  ConvcrHion. 

I  372.  Contracts  for  the  purchase  and  sale  of  lands. 

S  373.  AHHignnientB  of  poHHibiiitios;  sale  of  chattels  to  be  acquired  In 
the  future;  aBsignnients  of  things  in  action;  equitable  assigu- 
ments   of   moneys;    and   equitable   liens. 

I  374.  ExprcBH  trusts. 


TABLE    OF    CONTENTS,  XXV 

f  375.  Trusts  arising  by  operation  of  law. 
i   376.  Mortgage;   equity  of  redemption. 
{  377.  Conclusions. 

SECTION  II. 

EQUITY  LOOKS  TO  TITE  INTENT  RATHER  THAU  TO  THE  FOEIC 

5  378.  Its  meaning  and  effect. 

§  379.  Legal  requirements  of  mere  form. 
IS   380-384.  Is  the  source  of  equitable  doctrines. 

§  380.  Of  equitable  property. 

S  381.  Of  penalties  and  forfeitures. 

S  382.  Of  mortgages. 

5  383.  Effect  of  the  seal. 

S  384.  Other  special  instances. 

SECTION  in. 

HE   WHO    SEEKS    EQUITT   MUST   DO    EQUITY. 

S  385.  General  meaning  of  the  principle. 

{§  386,387.  In  what  cases  applicable. 

§  388.  Is  a  general  rule  regulating  the  administration  of  reliefs. 

§§   389-393.  Illustrations  of  the  principle. 

§  389.  The  wife's  equity. 

§   390.  Equitable  estoppel. 

§  391.  Relief  against  usury. 

5§  392,393.  Other  special  instances. 

8S  394-396.  Is  also  the  source  of  certain  equitable  doctrines. 

§  395.  Of  election. 

S  396.  Of  marshaling  securities. 

SECTION  IV. 

HE  WHO  COMES  INTO  EQUITY  MUST  COME  WITH   CLEAN  HANDS. 

§  397.     General  meaning  of  this  principle. 
§  398.     Is  based  upon  conscience  and  good  faith. 
§  399.     Limitations  upon  it. 
SS  400-403.     Illustrations  of  its  application. 
§  400.     In  specific  performance. 
§  401.     In  cases  of  fraud. 
§  402.     In  cases  of  illegality. 
§  403.     Limitation  in  cases  of  fraud  and  illegality;  parties  not  in  pari 

delicto. 
1 404.     Conclusion. 

SECTION  V. 

EQUALITY   IS   EQUITT. 

§  405.  Its  general  meaning. 
55  406-411.  Its  effects  upon  certain  equitable  doctrines. 
|§  406,407.  Of  pro  rata  distribution  and  contribution. 

9  408.  Ownership  in  common. 


XXVI  TABLE    OF    CONTENTS. 

8  409.  Joint  indebtedness;  liability  of  estate  of  deceased  joint  debtor. 

5  410.  Settlement  of  insolvent  estates;  marshaling  of  assets. 

§  411.  Abatcmont  of  legacies;  apportionment  of  liens;  appointment  un^ 
der  trust  powers;  contribution  among  co-sureties,  and  co-con- 
tractors. 

§  412.  Conclusion. 

SECTION  VI. 

WHEBE  THERE  ABE  EQUAL  EQUITIES,  THE  FIRST  IN  ORDEB  OF  TIME  SHALL  PREVAIL. 

§  413.  Its  application. 

S  414.  Its  true  meaning;  opinion  in  Rice  v.  Rica. 

i  415.  Its  effect  upon  equitable  doctrines. 

SECTION    VII. 

WHEBE  THERE  IS  EQUAL  EQUITY  THE  LAW   MUST   rREVAIU 

f  416.  Its  application. 

i  417.  Its  meaning  and  effects. 

SECTION  VIIL 

EQUITY    AIDS    THE   VIGILANT,    NOT   THOSE    WHO    SLUMBER    OW    THEIB    RTGHTa. 

§  418.  Its  meaning;  is  a  rule  controlling  the  administration  of  remediea,. 
§  419.  Its  application  and  effects. 

SECTION  IX. 

EQUITY   IMPUTES    AN    INTENTION    TO    FULTILL   AN    OBUQATIO>. 

5  420.  Its  meaning  and  application. 

U  421,  422.  Is  tlie  source  of  certain  ecjuitable  doctrines. 

8  421.  Performance  of  covenants. 

i  422.  Trust  resulting  from  acts  of  a  trustee. 

SECTION  X. 

EQUmr  WILL  NOT  SUFFEIi  A  WRONG  WITHOUT  A  REMEDT. 

I  42^.     Its    general    meaning    and   effects. 
t  424.     Limilatiuns   upon  it. 

SECTION    XI. 

EQUITY  FOLLOWS  THE  LAW. 

IS   425,  42fi.  Twofold  mraning  of  the  principle. 

I  425.  First,  in  obeying  the  law:  Heard  v.  Stamford,  per  Lord  Chan- 
cellor Talbot. 

I  42G.  Second,  in  applying  certain  legal  rules  to  equitable  estates:  Cow- 
per  V.  Cowper,  per  Sir  J.  Jekyll,  M.  R. 

I  427.  Operates  within  very  narrow  limits. 


TABLE    OF    CONTENTS.  XXVLl 

SECTION  XII. 

EQUITY    ACTS    IN    PERSONAM    AND    NOT    IN    REil. 

I  428.  Origin  and  original  meaning  of  this  principle. 
§  429.  In  what  sense  equitable  remedies  do  operate  in  rem. 
SI  430,431.  The  principle  that  courts  of  equity  act  upon  the  conscience  of  & 
party,  explained. 
t  431.  The  same,  per  Lord  VVcstbury. 

CHAPTER  SECOND. 

CEfiTAIN  DISTINCTIVE  DOCTRINES   OF  EQUITY  JUKISPBUDENCE. 

SECTION    I. 
CONCEBNINQ   PENALTIES   AND   FOEFEITUCES. 

§  432.  Questions  stated. 
i§  433-447.  Penalties;   equitable  relief  against. 

§  433.  General  ground  and  mode  of  interfereiica. 
§  434.  Form  of  relief;  when  given  at  law. 
§§  435-43G.  What  are  penalties. 

§  436.  To  secure  the  payment  of  money  alone. 
S{  437—445.  Stipulations  not   penalties. 

§  437.  Stipulations  in  the  alternative. 

§  438.  Ditto  for  the  reduction  of  an  existing  debt  upon  prompt  payment.. 
§  439.  Ditto  for  accelerating  payment  of  an  existing  debt. 
If  440-445.  Ditto  for  "  liquidated  damages." 

§  440.  "  Liquidated  damages  "  described  in  general. 
iS  441-445.  Rules  determining  between  liquidated  damages  and  penalties. 
§  441.    ( 1 )    Payment  of  a  smaller  sum  secured  by  a  larger. 
§  442.    (2)    Agreement  for  the  performance  or  non-performance  of  a  sin^fle 

act. 
g  443.    (3)   Agreement  for  the  performance  or  non-performance  of  sev- 
eral acts  of  different  degrees  of  importance. 
S  444.    (4)   The  party  liable  in  the  same  amoimt  for  a  partial  and  for  a 

complete  default. 
$  445.    (5)    Stipulation  to  pay  a  fixed  sum  on  default  in  one  of  several 

acts. 
I  446.  Specific     performance  of  a  contract  enforced,  although  a  penalty 
is  attached;  party  cannot  elect  to  pay  the  penalty  and  not  per- 
form. 
5  447.  Otherwise  as  to  stipulation  for  liquidated  damages. 
§{  448-460.  Of  forfeitures. 

SS  449-458.  When  equity  will  relieve  against  forfeitures. 
§  450.  General  ground  and  extent  of  such  relief. 
S  45 L  Relief  when  forfeiture  is  occasioned  by  accident,  fraud,  mistakCj 

surprise,  or  ignorance. 
§  452.  No  relief  when  forfeiture  is  occasioned  by  negligence,  or  is  willful 
(8  453,  454.  Relief  against  forfeitures  arising  from  covenants  in  leases. 
§  455.  Ditto,  from  contracts  for  the  sale  of  lands. 


xxviu 


TABLE    OF    CONTENTS. 


i  456.  Ditto,  from  other  special  contracts. 

S  457.  Ditto,  of  shares  of  stock  for  non-payment  of  calla. 

§  458.  Ditto,  when  created  by  statute. 

|§  459,  460.  Equity  will  not  enforce  a  forfeiture. 


SECTION  II. 

CONCERNING    ELECTION. 

S  461.     Questions  stated. 
IS  462—465.     Rationale  of  the  doctrine  discussed. 

§  463.     In  the  Roman  law. 

8  464.     Foundation,  the  presumed  intention  of  the  donor. 

§  465.     The  true  foundation  is  the  principle,  he  who  seeks  equity  mvst 
do  equity. 
SS  466—470.     Meaning,  extent,  and  effects  of  the  doctrine. 

§  466.     Election  in  conformity  with  instrument  of  donation. 
{{  467,468.     Election  in  opposition  thereto;  rules;  compensation. 

§  469.     No  election  unless  compensation  can  be  made. 

S  470.     Applies  to  all  instruments  of  donation. 
fS  471-505.     Applications;  classes  of  cases  in  which  the  necessity  for  an  elec- 
tion does  or  does  not  arise. 

§  472.     Fundamental  rule;  what  creates  the  necessity  for  an  election. 
{§  473-475.     Subordinate  rules  of  interpretation. 

§§  473,474.     Donor  has  only  a  partial  interest;  evidence  of  intention  not  ad- 
missible; a  general  gift  raises  no  election. 

§  475.     Other  special  rules  of  interpretation. 
is  476-486.     First  class:     Donor  gives  property  wholly  another's. 

§  477.     Ordinary  case,  gift  of  specific  property. 
§§  478—480.     Under  appointments  in  pursuance  of  powers. 
SS  481—486.     Wliere  testator  has  attempted  to  give  property  by  a  will  which 
is  ineffectual. 

S  482.     Infancy  or  coverture  of  testator. 

5  483.     Will  valid  as  to  personal,  invalid  as  to  real  estate. 

S  484.     Will  invalid  as  to  property  in  another  State  or  country. 

S  483.     Will  devising  after-acquired  lands. 

5  488.     Will  of  copy-holds. 
II  487-505.     Second  class:     Donor  gives  property  in  which  he  has  a  partial 
interest. 

I  488.     The  general  doctrine. 

S  489.     Donor  owns  only  an  undivided  share. 

8  400.     Donor  owns  only  a  future  interest. 

8   491.     Devise  of  lands  encumbered. 
88  492-502.     Dower;    widow's   election   between  dower  and  gifts  by  her  hus- 
band's will. 

8  493.     The  general  rule. 

8  494.     Contrary  legislation  in  various  States. 
II    495-502.     CljuiBOfl  of  teHtanientary  disposition. 

I  496.     ExproHs  dorlaration. 

I   497.     DvviHf  of  a  part  of  testator's  land  to  the  widow,  and  the  rest  to 
others. 


1    40S. 

§    4!i'l. 

1   500. 

i    :.0L 

8  Si>2. 

91 

503  505. 

§  50G. 

}{ 

r>()7-510. 

*$ 

511,512. 

1   513. 

SI 

6U,  515. 

H 

516.517. 

H 

518,519. 

TABLE    OF    CONTENTS.  XXUS 

Devi.>;e  to  the  widow  for  life. 

Divise  in  tru.st  to  sell,  or  with  a  power  of  sale. 

Gift   of   an   annuity,   etc.,    to   widow,   charged    npoti    the    l&iuit. 

devised  to  others. 
Devise  with  express  power  of  occupying,  leasing,  eic. 
Devise  to  widow  and  others  in  equal  shares. 
Election  in  devises  of  community  property. 
The  remaining  questions  stated. 

Who  may  elect;  married  women;  infants;  lunatica. 
Rights  and  privileges  of  persons  bound  to  elect. 
Time  of  election;  State  statutes. 
Mode  of  election,  express  or  implied;  conduct  amounting  to  *.» 

election. 
EflFects  of  an  election. 
Equitable  jurisdlctioD  in  matters  of  electioK. 


XXX 


TABLE    OF    CONTENTS. 


CONTENTS  OF  VOLUME  II. 


1  620. 

S  521. 

IS 

522^525. 

$  523. 

§  524. 

i  525. 

8  526. 

SS  527-543. 

s§ 

527-540. 

SS 

528-536. 

S  537. 

S  538. 

S  539. 

S  540. 

SS 

541,542. 

8  543. 

SS 

544-552. 

§  545. 

SS 

546-548. 

S  549. 

SS 

550,551. 

8  5o2. 

58 

553-5G4. 

S  554. 

8  555. 

1  556. 

ts 

657-560, 

8  559, 

8  5fi0, 

S  501, 

S  502. 

SI 

503,  504, 

Si 

505-508, 

SS 

500,  507, 

8  508, 

!I8 

509-577. 

8  570, 

ii  871-676, 

SECTION  III. 

CONCEBNING   SATISFACTION. 

Questions  stated. 

Definition. 

Various  conditions  of  fact. 

Rationale  of  the  doctrine. 

Ademption  and  satisfaction. 

Extrinsic  evidence. 

Divisions  of  the  subject. 

I.  Satisfaction  of  debts  by  legacipa. 
Legacy  by  a  debtor  to  his  creditor. 

Various  circumstances  which  prevent  the  presumption  of  8ati» 

faction. 
Direction  in  will  to  pay  debts. 

Legacy  in  pursuance  of  agreement,  or  in  express  payment. 
Debt  owing  to  a  child  or  wife. 
Debt  to  child  satisfied  by  an  advancement. 
Legacy  by  a  creditor  to  his  debtor. 
Satisfaction  of  debt,  how  enforced. 

II.  Satisfaction  of  legacies  by  subsequent  legacio^. 
Rule  first:     Specific  legacies. 

Rule  second:     Legacies  of  quantity  by  difl'erent  instrtimeiits. 
Rule  third:     Legacies  of  equal  amounts  by  the  same  instruinont. 
Rule  fourth:     Legacies  of  unequal  amounts  by  the  same  instru- 
ment. 
Extrinsic  evidence. 

III.  Satisfaction  of  legacies  by  portions  and  advancemcntB. 
Presumption  of  satisfaction. 

Subsequent  gift  less  than  the  legacy. 

Person  in  loco  parentis. 

Circumstances  which  do  or  do  not  prevent  the  presumption. 

Payment  to  husband  of  a  female  legatee. 

Wiiat  prevents  the  presumption. 

EfTcct  of  a  codicil. 

Satisfaction  of  legacies  between  strangers. 

Satisfaction  when  not  presumed  but  expressd. 

IV.  Satisfaction    of    portions   by   subsequent    legacies,   or   other 
similar  provisions. 

DifTerr'nccs  between  the  gifta  which  do  not,  and  which  do,  defe«t 

the  presumption. 
Election  by  the  beneficiary. 
AdmiHsibility  and  efTect  of  extrinsic  evidence, 
rjrncnil  pritu  i[)lfs  discus.sed  and  explained. 
When  the  subsequent  benefit  is  given  by  a  writing. 


TABLE    OP    CONTENTS. 


Trryi 


I  672.     The  writing  expressly  states  the  donor's  intention. 

S  573.     The  writing  silent  as  to  donor's  iatention,  and  no  presumption 

arises  from  it. 
I  674.     The  writing  silent  as  to  donor's  intention,  but  a  presumption  oJ 

satisfaction  arises  from  it. 
(  575.     Cases  to  which  the  foregoing  rules  apply. 
}  576.     When  the  subsequent  benefit  is  given  verbally. 
{  577.     Amount  of  evidence. 

SECTION  IV. 

CONCERNING   PEBFOBMANCZ. 

i  578.  Rationale. 

§  579.  Definition. 

if  580-583.  I.  Covenant  to  purchase  and  settle  or  convey. 

§  580.  General  rule:  Lechmere  v.  Earl  of  Carlisle. 

§  581.  Forms  of  covenant  to  which  the  rule  applies. 

§  582.  Special  rules. 

§  583.  Such  covenant  creates  no  lien. 

(§  584-586.  II.  Covenant  to  bequeath  personal  property. 

S  584.  General  rule:     Blandy  v.  Widmore;  Goldsmid  v.  Goldsmid. 

i  585.  Limitations  on  the  rule;  covenant  must  not  create  a  debt  in  life- 
time of  deceased. 

I  686.  A    legacy   not    a    performance ;    distinction    between    "  perform- 
ance "  and  "  satisfaction  of  legacy." 

S  587.  Presumption  of  performance  by  trustees. 

}5  588-590.  Meritorious  or  imperfect  consideration;  theory  of. 

§§  589,590.  Defective  execution  of  powers,  relief  of. 

S  590.  Requisites  for  such  relief;  a  partial  execution  necessary. 


SECTION  V. 


CONCERNING    NOTICE. 


1  591. 

S  592. 

§  593. 

i  594. 

(1 

695-603. 

§  596. 

§  597. 

§s 

598-602. 

§  603. 

ss 

604-609, 

§  605, 

ss 

606,  607. 

fi  608, 

5  609. 

§s 

610-613, 

§§ 

614-625, 

§§ 

614,615, 

Questions  stated.     Le  Neve  v.  Le  Neve. 

Knowledge  and  notice  distinguished. 

Kinds;  actual  and  constructive. 

Definition. 

Actual  notice. 

When  shown  by  indirect  evidence. 

WTiat  constitutes ;  rumors ;  putting  on  inquiry,  et«. 

Special  rules  concerning  actual  notice. 

Etfect  of  knowledge  instead  of  notice. 

Constructive  notice  in  general. 

Jones  V.  Smith,  opinion  of  V.  C.  Wigram. 

When  the  presumption  is  rebuttable;   due  inquiry. 

When  it  is  conclusive. 

Species  of  constructive  notice. 

1.  By  extraneous  facts;   acts  of  fraud,  negligence,  or  mist.-xk*; 

general  rule  as  to  putting  on  inquiry;  visible  objects,  etc 

2.  By  possession  or  tenancy. 
General  rules,  English  and  American. 


xsxu 


TABLE    OF    CONTENTS. 


'S§  616-618.  Extent  and  effect  of  the  notice. 

§1  619—622.  Nature  and  time  of  the  possession. 

;§§  623,624.  Whether  the  presumption  is  rebuttable  or  not. 

§  625.  Possession  by  a  tenant  or  lessee. 

15  626-631.  3.  By  recitals  or  references  in  instruments  of  title. 

§  626.  General  rules. 

?$  627-631.  Nature  and   extent   of   the   notice;    limitations;    instances,   etc 

^  §  632-640.  4.  By  lis  pendens. 

§  632.  Rationale:  Bellamy  v.  Sabine. 

J§  633,634.  General  rules;  requisites. 

?§  635,636.  To  what  kind  of  suits  the  rule  applies. 

-5§   637,638.  What  persons  are  affected. 

?5  639,640.  Statutory  notice  of  lis  pendens. 

Jf  641-643.  5.  By  judgments. 

■?§  644— 6G5.  6.  By  recording  or  registration  of  instruments. 

•5  §  645,  646.  ( 1 )    The  statutory  system ;  abstract  of  statutes. 

>5  647-649.  (2)    General  theory,  scope,  and  object  of  the  legislation. 

-*§  650-054.  (3)    Requisites  of  the  record  in  order  that  it  may  be  a  notice. 

§  655.  (4)    Of  what  the  record  is  a  notice. 

iS!5  656-658.  (5)    To  whom  the  record  is  a  notice. 

§  657.  Not  to  prior  parties. 

§  658.  To  subsequent  parties  holding  under  the  same  source  of  title; 
effect  of  a  break  in  the  record. 

'C^§  659,  660.  (6)    Effect  of  other  kinds  of  notice  in  the  absence  of  a  record. 

■^8  661-6C5.  (7)    What  kinds  of  notice  will  produce  this  effect. 

§  662.  English  rule. 

'^1  663,664.  Conflicting  American  rules;  actual  or  constructive  notico. 

§  665.  True  rationale  of  notice  in  place  of  a  record, 

if  665-676.  7.  Notice   between    principal   and   agent. 

•}§  666-669.  Scope  and  applications. 

/J   G70-675.  Requisites  of  the  notice. 

§  670.  (1)    Notice  must  be  received  by  agent  during  his  actual  employ- 
ment, 

'ij  671,672.  (2)    And  in  the  same  transaction;  when  in  a  prior  transaction. 

8  673.  (3)    Information  must  be  material;  presumption  that  it  was  com- 
municated to  the  principal. 

s3|  674,075.  Exceptions:   Agent's  own  fraud. 

8  070.  True  rationale  of  this  rule. 


SECTION  VI. 

CONCERNING    PRIORITIES. 

i  677.  Questions  stated. 

iS  678-602.  First.  The  fundamental  principles. 

IS   679-081.  I.  P^states   and    int^^rcsts   to   which   the  doctrine  appli<rfl. 

8   082.  II.  Kquitalilc  doctriiio  of  priority,  in  general. 

|{   683  092.  III.  Suprrior  and  equal  equities. 

8   083.  When  equities  are  equal. 

Hfi  684-092.  Superior  eqiiilif.'<  defined  and  described. 

I   08.").  1.    I'rf)ni  tlic'ir  intrinsic  nature. 


TABLE    OF    CONTENTS. 


XXX  111' 


{{  686,687. 
n  688-692. 

§  688. 

§  689. 
H  690-692. 
H  693-734. 
ii   693-715. 

§  693. 
U  694-696. 

§  694. 
is  695-697. 

a  698-702. 

§  698. 

a  699-701. 


§  702. 
I?  703-715. 
!§  704-706. 

§  704. 
J  5  705,706. 
J J  707-713. 

§  707. 
§«  708,709. 
§$  710,711. 


§  712. 


§  713, 

St 

714,715. 

§  714. 

1  715, 

f{ 

716-732, 

§  717, 

§s 

718,719, 

§  719, 

§5 

720-726. 

§  720. 

u 

721,  722. 

S  723. 

i  724. 

§  725, 

8  726. 

a 

727-729. 

§  728, 

5  729, 

2.  From  the  effects  of  fraud  and  negligence 

3.  From  the  effects  of  notice. 
General  rules  and  illustrations. 
Notice  of  a  prior  covenant. 

Time  of  giving  notice,  and  of  what  it  consistu. 
Second.    Applications  of  these  principles. 
Assigimients  of  things  in  action. 
Dearie  v.  Hall. 

I.  Notice  by  the  assignee. 

Notice  to  debtor  not  necessary  as  between  assignor  and  assignee-. 
Engli.sh   rule,  notice  to  debtor  necessary  to  determine  the  pri- 
ority among  successive  assignees. 

II.  Diligence  of  the  assignee. 
General   rules:      Judson  v.  Corcoran. 

Assignment  of  stock  as  between  assignee  and  assignor,  and  th© 
company,  judgment  creditors  of  assignor,  and  subsequent  pur- 
chasers. 

Notice  to  the  debtor  necessary  to  prevent  his  subsequent  acta. 

III.  Assignments  of  things  in  action  subject  to  equities. 

1.  Equities  in  favor  of  the  debtor. 

General  rule:  assignments  of  mortgages;  kinds  of  defenses. 
Provisions  in  codes  of  procedure. 

2.  Equities  between  successive  assignors  and  assignees. 
Conflicting  decisions ;   mode  of  reconciling. 

General  rule:  assignment  subject  to  latent  equities;  illustrationsi. 
When  the  rule  does  not  apply;  effect  of  estoppel;  true  limits  of 

the  estop[)el  as  applied  to  such  assignments. 
Subsequent  assignee  obtaining  the  legal  title  protected  as  a  bona 

fide  purchaser. 
Successive  assignments  by  same  assignor  to  different  assignees,. 

3.  Equities  in  favor  of  third  persons. 

General  rule:  assignments  subject  to  such  equities. 
Contrary  rule :  assignments  free  from  all  latent  equities. 
Equitable  estates,  mortgages,  liens,  and  other  interests. 
Doctrine  of  priorities  modified  by  recording  acts. 

I.  Priority  of  time  among  equal  equities. 

Illustrations:  simultaneous  mortgages,  substituted  liens,  etc. 

II.  One  equity  intrinsically  the  superior. 
Prior  general  and  subsequent  specific  lien. 

Prior  unrecorded  mortgage  and  subsequent  docketed  judgment. 

Same,  where  judgment  creditor  had  notice. 

Prior  unrecorded  mortgage  and  purchase  at  execution  sale  under 

a  subsequent  judgment. 
Purchase  money  mortgages. 
Other  illustrations. 

III.  A  subsequent  equity  protected  by  obtaining  the  legal  title. 
Legal  estate  obtained  from  a  trustee. 

Legal  estate  obtained  after  notice  of  prior  equity. 

Vol.  I  —  iii 


xxnv 


Table  of  contents. 


§  730.     IV.  Notice  of  existing  equities. 
IS   731,  732.     V.  Effect  of  fraud  or  negligence  upon  priorities. 
It  733,734.     Assignments   of   mortgages,    rights   of   priority   depending   upon 
them. 

SECTION  VII. 

COHCERXTNQ    BONA    FIDE    PTJRCnASE    FOR    A    VALUABLE    CONSIDERATION     AWB 

WITHOUT  NOTICE. 


IS 


I   735. 

S  736. 
IS   737-744. 

S  738. 

S  739. 
iS  740,741. 
SS  742,743. 
S§  745-762. 
IS  746-751. 

S  747. 
SS  748,749. 
750,  751. 
752-761. 

f  753. 

S  754. 

S  755. 
f  756. 

II  757-761. 

S  758. 
S  759. 

S  760. 

I  761. 

S  762. 

II  763-778. 

I  764. 

I  765. 
II  766-774. 

I   707. 
I  708. 

I  709. 

S   770. 

II  771-773. 


General  meiining  and  scope  of  the  doctrine. 

General  effect  of  the  recording  acts. 

First.  Rationale  of  the  doctrine. 

Its  purely  equitable  origin,  nature,  and  operation. 

It  is  not  a  rule  of  property  or  of  title. 

GSeneral  extent  and  limits;  kinds  of  estates  protected. 

Phillips  V.  Phillips ;  formula  of  Lord  Westbury. 

Second.  What  constitutes  a  bona  fide  purchase. 

L  The  valuable  consideration. 

1.  What  is  a  valuable  consideration;  illustrations. 
Antecedent  debts,  securing  or  satisfying;  giving  time,  etc 

2.  Payment;   effect  of  part  payment;  giving  security. 

II.  Absence  of  notice. 

1.  Effects  of  notice  in  general. 

Second  purchase  without  notice  from  first  purchaser  unth;  also 
second  purchaser  with  from  first  purchaser  loithout  notice. 

2.  Time  of  giving  notice ;  English  and  American  rules. 

Effect  of  notice  to  a  bona  fide  purchaser  of  an  equitable  interest 
before  he  obtains  a  deed  of  the  legal  estate. 

3.  Recording  in  connection  with  notice. 
Interest  under  a  prior  unrecorded   instrument. 

Requisites  to  protection  from  the  first  record   by  a  subsequent 

purchaser. 
Purchaser  in  good  faith  with  apparent  record  title  from  a  grantor 

charged  with  notice  of  a  prior  unrecorded  conveyance. 
Break  in  the  record  title ;  when  purchaser  is  still  charged  with 

notice  of  a  prior  instrument. 

III.  Good  faith. 

Third.     P^ffccts  of  a  bona  fide  purchase  as  a  defense. 

I.  Suits  by  holder  of  legal  estate  under  the  auxiliary  jurisdiction 
of  ecjuity,  discovery,  etc. 

Same,  exceptions  and  limitations. 

II.  .Suits  by  holder  of  an  equitable  estate  or  interest  against  ■ 
purchaser  of  the  legal  estate. 

I^egal  estate  acquired  by  the  original  purchase. 

Purcha.scr  first  of  an   equitable   interest,   subsequently   acquire! 

the  legal  estate ;  "  tabula  in  naufragio." 
Extent  and  limits  of  tliis  rule. 

Purcliaser  af(iuires  tlie  legal  estate  from  a  trustee. 
This  rule  as  apjilirci   in  the  United  States. 


TABLE    OF    CONTENTS. 


XXXV 


f  774.  Other  instances;  purchase  at  execution  sale;  purchase  of  things 
in  action. 

a   775-778.  III.  Suits  by  holders  of  an  "  equity." 

§  776.  For  relief  against  accident  or  mistake. 

J  5    777,778.  For  relief  from  fraud,  upon  creditors,  or  between  parties. 

(S   779-783.  Fourth.  Affirmative  relief  to  a  bona  fide  purchaser. 

§  779.  General  rule. 

{fi  780-782.  Illustrations. 

§  783.  Removing  a  cloud  from  title. 

t§   784,785.  Fifth.  Mode  and  form  of  the  defense. 

§  784.  The  pleadings. 

I  785.  Necessary  allegations  and  proofs. 


SECTION  VIII. 


CONCERNING    MERGEH. 


II 


11 


§  786. 
787,788. 

8  787. 

8  788. 
789-800. 

8  790. 

8  791. 

8  T92. 

8   793. 

8  794. 
8  795. 
8  796. 
8  797. 
8  798. 
8  799. 
I  600. 


Origin  and  nature  of  the  doctrine. 
First.  Merger  of  estates. 

I.  The  legal  doctrine. 

II.  The  equitable  doctrine. 
Second.  Merger  of  charges. 

I.  The  owner  of  the  property  becomes  entitled  to  the  charge. 
Same:  Intention  prevents  a  merger. 

Time  and  mode  of  expressing  the  intention. 

Conveyance  to  the  mortgagee ;   assignment  to  the  mortgagor  or 

to  his  grantee. 
Merger  never  prevented  when  fraud  or  wrong  would  resuIL 
Life  tenant  becomes  entitled  to  the  charge. 

II.  Tlie  owner  of  the  land  pays  off  a  charge  upon  it. 
Owner  in  fee  personally  liable  for  the  debt  pays  off  a  charge. 
Owner  who  is  not  liable  for  the  debt  pays  off  a  charge. 
Life  tenant  pays  off  a  charge. 

Priorities  affected  by  merger. 


II 


8 

801. 

1 

802. 

8 

803. 

8 

804. 

8 

805. 

8 

806. 

8 

807. 

808- 

-812. 

i 

808. 

i 

S09. 

1 

810. 

SECTION  IX. 

CONCERNING  EQUITABLE  ESTOPPEU 

Nature  of  the  rights  created  by  estoppel. 

Origin  of  equitable  estoppel. 

How  far  fraud  is  essential  in  equitable  estoppels. 

Definition. 

Essential  elements  constituting  the  estoppel. 

Theory  that  a  fraudulent  intent  is  essential. 

Fraudulent  intent  necessary   in  an  estoppel   affecting  the  legal 

title  to  land. 
Requisites  further  illustrated. 
The  conduct  of  the  party  estopped. 
Knowledge  of  the  trutli  by  the  party  estopped. 
Ignorance  oi  the  truth  by  the  other  party. 


XtXVl  TABLE    OF    CONTENTS. 

{  811.  Intention  by  the  party  who  is  estopped. 

i   812.  The  conduct  must  be  relied  upon,  and  be  an  inducement  for  tlM 

other  party  to  act. 

5  813.  Operation  and  extent  of  the  estoppeL 

§  814.  As  applied  to  married  women. 

5  815.  As  applied  to  infants. 

n  81C-821.  Important  applications  in  equity. 

§  816.  Acquiescence. 

§  817.  Same:  as  preventing  remedies. 

8  818.  Same:  as  an  estoppel  to  rights  of  property  and  contract, 

I  819.  As  applied  to  corporations  and  stockholders. 

§  820.  Other  instances  of  acquiescence. 

i  821.  Owner  estopped  from  asserting  his  legal  title  to  land. 

CHAPTER  THIRD. 

CERTAIN  FACTS  AND  EVENTS   WHICH  AEE  THJC  OCCASTOXS   OF   EQUI- 
TABLE PRIMARY   OR  REMEDIAL  lUuHXa, 

i  822.     Introductory  paragraph. 

SECTION  L 

ACCIDENT. 

;  823.  Definition. 

8  824.  Rationale  of  the  jurisdiction. 

§  825.  General  limitations  on  the  jurisdiction. 

II  826  829.  Instances  in  which  the  jurisdiction  does  not  eiiat. 

§  826.  Non- performance  of  contracts. 

5  827.  Supplying  lost  or  destroyed  records. 

§  828.  Other  special  instances. 

§  829.  Parties  against  whom  the  jurisdiction  \»  not  exercised. 

$1  830-837.  Particular  instances  of  the  jurisdictiou, 

§  831.  1.  Suits  on  lost  instruments. 

8  832.  Same:  instruments  not  under  seal. 

8  833.  2.  Accidental   forfeitures. 

8  834.  3.  Defective  execution  of  powers. 

8  835.  Powers  held  in  trust  will  be  enforcecL 

i  836.  4.  Relief  against  judgments  ai  Iaw. 

I  837.  5.  Other  special  instances. 

SECTION  II. 

MISTAKE. 

I  838.  Origin  and  purpose  of  this  jurisdiction. 

8   839.  I.  Definition. 

II  840-856.  II.  Various   kinds   of   mistakes    which   furnish    aji   occasion    ton 

relief. 

II  811-851.  First.  Mistakes  of  law. 

8  842.  The  general  rule  and  its  limitations. 

I  843.  Mistake  as  to  the  legal  import  or  efi^ect  of  a  transnctlon. 


TABLE   OF    CONTENTS. 


XXXVll 


es 

844- 

-851, 

§ 

845, 

§ 

846, 

1 

847. 

§ 

848. 

i 

849. 

{   850. 


J   851. 

II 

h:.  2-856. 

§  853, 

f  854. 

§  855, 

5   856. 

if 

s:.7-867. 

i  858, 

S  859, 

J  860. 

I  861, 

§   862, 

§  863, 

il 

-64-867, 

S  865, 

f  866. 

S  867. 

»l 

^  68-871, 

§  868. 

§  869, 

{  870, 

1  871. 

Particular  instances  in  which  relief  will  or  will  not  be  grantwi. 
Reformation  of  an  instrument  on  account  of  a  mistake  of  law. 
Mistake  common  to  all  the  parties:  mistake  of  a  plain  rule. 
Mistake   of   law   accompanied    with    inequitable   conduct  of   the 

other  party. 
Same:  between  parties  in  relations  of  trust. 
Relief  where  a  party  is  mistaken  as  to  his  own  existing  legal 

rights,  interests,  or  relations. 
Compromises  and  voluntary  settlements   made  upon  a  mistake 

as  to  legal  rights. 
PajTnents  of  money  under  a  mistake  of  law. 
Second.  Mistakes  of  fact. 
How  mistakes  of  fact  may  occur. 
In  what  mistakes  of  fact  may  consist. 
Compromises  and  speculative  contracts. 
Requisites  to  relief:    mistake  must  be   material   and   frre   from 

culpable  negligence. 

III.  How  mistake  may  be  shown :  when  by  parol  evidence. 
Parol  evidence  in  general  in  cases  of  mistake,  fraud,  or  surpri.se. 
In  suits  for  a  reformation  or  cancellation:  character  and  effect  of 

the  evidence. 
Parol  evidence  in  defense  in  suits  for  a  specific  perfonnance. 
Parol  evidence  of  mistake  on  the  plaintiff's  part  in  suits  for  a 

specific  performance:  English  rule. 
Same:  American  rule:  evidence  admissible. 
Evidence  of  a  parol  variation  which  has  been  part  performed. 
Effect  of  the  statute  of  frauds  upon  the  use  of  parol  evidence 

in  equitable  suits. 
T\vo  classes  of  cases  in  which  the  use  of  parol  evidence  may  be 

affected  by  the  statute. 
General  doctrine:  parol  evidence  of  mistake  or  fraud  admissible 

in  both  these  classes  of  cases. 
Glass  V.  Hulbert:  examination  of  proposed  limitations  upon  this 

general  doctrine. 

IV.  Instances   of  equitable   jurisdiction   occasioned   by   mistake. 
When  exercised  by  way  of  defense. 

By  way  of  afiirmative  relief:  recovery  of  money  paid  by  mistake. 
Affirmative  relief:   reformation  and  cancellation. 
Conditions  of  fact  which  are  occasions  for  affirmative  relifl. 


SECTION  IIL 


H    H 


ACTUAL  FBAUD. 

S  872.  Objects  and  purposes. 

8  873.  Description ;   essential  elements. 

5  874.  Foiir  forms  and  classes  of  fraud  in  equity. 

§  875.  Nature  of  actual  fraud. 

■(>-8n9.  First.     Misrepresentations. 

S   877.  1.  Tiip  form:  an  affirmation  of  fact. 

§   878.  Misrepresentation  of  matter  of  opinion. 


IXXVIU 

i 

879. 

s 

880, 

i 

831. 

5 

832, 

fi 

883- 

-889. 

s 

884, 

§ 

885, 

91 

886- 

-888, 

s 

889, 

«f 

890-897, 

S  890. 
S  S91. 
S  892. 
fi   8'J3. 


f 

894. 

f 

895. 

8 

896. 

§ 

897. 

8 

S98. 

§ 

899. 

fl  ;i 00-907. 

§ 

901. 

1 

902. 

§ 

!)03. 

fi 

904. 

f 

905. 

i 

906. 

8 

907. 

18  908- 

909. 

5  J   010-921. 

§ 

911. 

§ 

912. 

8 

913. 

§ 

914. 

8 

915. 

fi 

916. 

fi 

917. 

< 

'.118, 

t 

919. 

f 

ii20, 

1 

921. 

TABLE    OF    CONTENTa. 

n.  The  purpose  for  which  the  representation  Is  made. 
Presumption  of  the  purpose  to  induce  action. 
False  prospectuses,  reports,  and  circular!. 

III.  Untruth  of  the  statement. 

IV.  The  intention,  knowledge,  or  belief  of  the  party  making 
the  statement. 

The  knowledge  and  intention  requisite  at  law. 
The  knowledge  or  intention  requisite  in  equity. 
Six  forms  of  fraudulent  misrepresentations  in  equity. 
Kequisites  of  a  misrepresentation  as  a  defense  to  the  specific  en- 
forcement of  contracts  in  equity. 

V.  Effect  of  the  representation  on  the  party  to  whom  it  ib 
made. 

He  must  rely  on  it. 

He  must  be  justified  in  relying  on  it. 

When  he  is  or  is  not  justified  in  relying  on  it. 

Information  or  means  of  obtaining  information  possesse*^  by  the 

party  receiving  the  representation. 
Knowledge  possessed  by  him ;  patent  defects. 
When  the   knowledge  or  information  must  be  pr«ve4  »Jii   not 

presumed. 
Words  of  general  caution. 
Prompt  disaffirmance  necessary. 

VI.  Materiality  of  the  misrepresentation. 
Effects  of  a  misrepresentation. 
Second.  Fraudulent  concealments. 
General  doctrine ;   duty  to  disclose. 
When  duty  to  disclose  exists. 
Concealments  by  a  vendee. 
Concealments  by  a  vendor. 

Non-disclosure  of  facts  a  defense  to  the  specific  enforcement  of 
contracts  in  equity. 

Concealments  by  buyers  on  credit. 

Contracts  and  transactions  essentially  fiduciary;   suretyship. 

Liability  of  principals  for  the  fraud  of  their  agent*. 

Third.  Jurisdiction  of  equity  in  cases  of  fraud. 

Fundamental  principles  of  the  jurisdiction. 

The  English  doctrine. 

Exception:  fraudulent  wills. 

The  American  doctrine. 

Incidents  of  the  jurisdiction  and  relief. 

The  same;   plaintiff  particeps  doli;  ratification. 

The  same;  promptness;  delay  through  ignorance  of  the  fraud. 

PfT.sons   again.st   whom   relief   is  granted;    bcma  fide   purclianers. 

I'articular  instances  of  the  jurisdiction;  judgments;  awards; 
friuiiliilont  devises  and  l)O(|U0Rt.s;  preventing  acta  for  the  bene- 
fit of  others;  suppressing  instruments. 

The  sairic;  ai)[)ointinont  under  powers;  marital  rights;  trusts. 

The  statute  of  frauds  not  an  instrument  for  the  accomplishment 
of  fraud. 


TABLE    OF    CONTENTS.  XXXLX 

SECTION  IV. 

C0N8TKUCTIVE  FRAUD. 

f  922.     Definition:  essential  elements. 
S   923.     Three  principal  classes. 
IS  924-942.     First.  Constructive  fraud  apparent  from  the  intrinsic  nature  and 
subject  of  the  transaction  itself. 
S   925.     I.  Inadequacy  of  consideration. 
i   926.     Inadequacy  pure  and  simjile. 
8   927.     Gross  inadequacy  amounting  to  fraud. 
§  928.     Inadequacy  coupled  with  other  inequitable  incidents. 
IS  929-936.     II.  Illegal  contracts  and  transactions. 

S  930.     1.  Contracts  illegal  because  contrary  to  statute :' usury,  gaming, 
smuggling. 
IS  931-935.     2.  Transactions  illegal  because  opposed  to  public  policy. 

S  931.     ^.Contracts  interfering  with  the  freedom  of  marriage;  marriage 
brokerage;    in   restraint  of  marriage;    rewards  for  marriage; 
secret   contracts   in   fraud   of   marriage;    secret   contracts    to 
marry ;   rewards  for  procuring  wills. 
{  932.     Agreements  for  a  separation. 

§  933.     B.  Conditions  and  limitations  in  restraint  of  marriage. 
I  934.     G.  Contracts   directly   belonging  to   and   affecting  business   rela- 
tions; restraint  of  trade;  interfering  with  bidding  at  auctions 
and  governmental  lettings;   puffers;   fraudulent  trade-marks; 
violating    policy    of    statutes    prescribing    business    methods ; 
trading  with  alien  en«mies. 
I  935.     i).  Contracts    affecting    public    relations;     interfering    with    the 
election  or   appointment  of  officers;    interfering  with   legisla- 
tive  proceedings;    ditto   executive   proceedings;    ditto   judicial 
proceedings. 
8  936.     3.  Contracts  illegal  because  opposed  to  good  morals;   for  illicit 
intercourse;   champerty  and  maintenance;   compounding  with 
a  felony  or  preventing  a  prosecution. 
SS   937-942.     III.  Equitable  jurisdiction  in  case  of  illegal  contracts. 
In  usurious  contracts ;  usurious  mortgages. 
In  gaming  contracts. 

In  other  illegal  contracts ;  explanation  of  maxim,  in  pari,  etc. 
In  pari  delicto,  general  rules. 
In  pari  delicto,  limitations  on  general  rules. 
Not  in  pari  delicto. 
IS  943-965.     Second.  Constructive  fraud  inferred  from  the  condition  and  rela 
tions  of  the  immediate  parties  to  the  transaction. 
General  description  and  divisions. 
IS  944-954.     I.  Transactions  void  or  voidable,  with  persons  wholly  or  partiallj 
incapacitated. 
Coverture ;  infancy. 
Insanity. 
Mental  wealcness. 
Persons  in  vinculis ;  ditto  illiterate  or  ignorant. 


937- 

-942. 

f 

937. 

5 

938. 

S 

939. 

8 

940. 

§ 

941. 

§ 

942. 

943-965. 

§  943. 

944-954. 

s 

945. 

§ 

946. 

s 

947. 

s 

948. 

TAELE    OF    CONTENTS. 

Intoxication. 
Duress. 

Undue  intUicnce. 
Sailors. 

Expectants,  heirs,  reversioners. 
Post  obit  contracts. 
i!  9o5-965.     II.  Transactions  presumptively  invalid  between  persons  in  fidtt 

ciary  relations. 
Circumstances  to  which  the  principle  applieii. 
Tlie  general  principle. 
Two  classes  of  eases  in  which  it  operates. 
Trustee  and  beneficiary. 
Principal  and  agent. 
Attorney  and  client. 
Guardian  and  ward. 
Parent  and  child. 
Other   relations:    executors   and   administrators;    physician    an* 

patient;  spiritual  advisers;  husband  and   wife;   partnero,  etc 
Confirmation  or  ratification. 
Acquiescence  and  lapse  of  time. 
!  I  900-974.     Third.  Frauds  against  third  persons  who  are  not  parties  to  the 

transaction. 
Secret  bargains   accompanying  compositions   with  crcditorB. 
Conveyances  in  fraud  of  creditors. 
The  consideration. 
The  fraudulent  intent. 
Modes  of  ascertaining  the  intent. 
Existing  creditors. 
Subsequent  creditors. 
ConvoyarT''  iii  fraud  of  jiuh^-ijuent  purchaser*. 


!» 

949. 

5 

950. 

i 

9.51. 

s 

952. 

§ 

953. 

§ 

954. 

9o5- 

-965. 

§ 

955. 

§ 

956. 

J 

957. 

5 

958. 

J 

959. 

i 

960. 

i 

9C1. 

i 

962. 

i 

963. 

I 

964. 

5 

965. 

9C>G 

-974. 

i 

967. 

§ 

968. 

§ 

969. 

§ 

970. 

i 

971. 

5 

972. 

5 

973. 

J 

974. 

TABLE   OF   CONTENTS.  xli 

CONTENTS  OF  VOLUME  III. 


PAET  THIRD. 

rUE  EQUITABLE  ESTATES,  INTERESTS,  AND  PRIMARY  RIGHTS 

RECOGNIZED    AND    PROTECTED    BY    THE 

EQUITY  JURISPRUDENCE. 

§  975.     Preliminary  paragraph. 


CHAPTER  FIRST. 

TRUSTS. 
SECTION  I. 

ORIGIN   OF  USES   AXD   TRUSTS. 

§  976.  The  testament  in  the  Roman  law. 

§  977.  Fideicommissa  in  the  Roman  law. 

§  978.  Origin  of  uses. 

§  979.  The  use  at  law. 

§  980.  The   use  in   equity. 

§  981.  Resulting  uses:   equitable  theory  of  consideration 

§  982.  Double  nature  of  property  in  land,  the  use  and  tht  seism. 

§  983.  llie  "  statute  of  uses." 

§  984.  Kinds  of  uses  not  embraced  within  the  statute. 

§  985.  A  use  upon  a  use  not  executed  by  the  statute. 

§  986.  Trusts  after  the  statute:  effect  of  the  statute  in  the  American 
states, 

SECTION  II. 

EirKESS   I'EJVATE   TECSTS. 

Classes  of  trusts. 

Express  passive  trusts. 

Estates  of  the  two  parties;  liability  for  beneficiary's  debts,  et«. 

Rules  of  descent,  succession,  and  alienation. 

Express  active  trusts. 

Classes  of  active  trusts. 

Voluntary   assignments   for  the   benefit  of  creditors;    English 

doctrine. 
The  same;  American  doctrine. 
Deeds  of  trust  to  secure  debts. 
Voluntary  trusts. 

Tlie  general  doctrine ;  incomplete  voluntJiry  trusts  not  enforced 
When  the  donor  is  the  legal  owneT. 
When  the  donor  is  the  equitable  owner. 
Executed  and  executory  trusts. 
Definition  and  description. 
Powers  in  trust. 


§ 

987. 

SS  988- 

-990. 

§ 

989. 

§ 

990. 

l< 

991- 

-995. 

§ 

992. 

§ 

993. 

s 

994. 

s 

995. 

fl 

99G-999. 

§ 

997. 

§ 

998. 

§ 

999. 

fl  1000, 

1001. 

5 

1001. 

1 

1002. 

Xlii  TABLE    OF    CONTENTS. 

II  1003-1005.     Legislation  of  various  states. 

I   1004.     Judicial   interpretation ;   validity  of  trusts. 

i   1005.     Interest,  rights,  and  liabilities  of  the  beneficiary. 

SECTION  III. 

HOW  EXPRESS  TRUSTS  ARE  CREATED. 

I   1006.     Trusts  of  real  property;  statute  of  frauds;  writing  necessary. 
S   1007.     Written   declaration   by  the   grantor;    ditto,   by   the   trustee; 

examples. 
i   1Q08.     Trusts  of  personal   property  may  be  created  verbally;   what 

trusts  are  not  within  the  statute. 
§   1009.     Words  and  dispositions  sufficient  to  create  a  trust;  examples. 
{|  1010-1017.     Express  trusts  inferred  by  construction,  sometimes  improperly 

called  "  implied  trusts." 
§   1011.     1.  From  the  powers  given  to  the  trustee. 
§   1012.     2.  Provisions  for  maintenance;  examples. 
§   1013.     3.  To  carry  out  purposes  of  the  will. 

§   1014.     4.  From  "precatory"  words;  Knight  v.  Knight;  examples. 
§   1015.     Modern    tendency    to    restrict    this    doctrine;    in    the    United 

States. 
I   1010.     What    intention    necessary   to   create   the   trust;    the   general 

criterion;   examples. 
i   1017.     Objections  to  the  doctrine. 

SECTION  IV. 

PUBLIC  OB   CHARITABLE   TRUSTS. 

8   1018.     General  description. 

A  public,  not  a  private,  benefaction  requisite. 
What  are  charitable  uses  and  purposes :  "  Statute   of  chari- 
table uses." 
11   1021-1024.     Classes  of  charitable  uses. 

1.  Religious  purposes. 

2.  Benevolent  purposes. 

3.  Educational  purposes. 

4.  Other  public  purposes. 
Creation  of  the  trust:  certainty  or  uncertainty  of  the  object 

and  of  the  beneficiaries. 
Ccrtiiinty  or  uncertainty  of  the  trustees. 
Tlie  (loci  line  of  cypres. 

Origin  and  extent  of  the  equitable  jurisdiction. 
Charitable  trusts  in  the  United  States. 

SECTION  V. 

tmUSTS  ARISING   BY  OrKKATlON  OF  LAW  —  RESULTING  AND  OONSTiaCTIVI  TB08T8 . 

S    lO.'iO.     General  njitiirc  and  kinds. 
ft   1031-1043.     First.    Il(!suRing  trusts. 
II   1032'-1036.     First  form  :  trusts  resulting  to  donor. 

I   1032.      1.  Property  conveyed  on   some   trust   which   fail*. 


§ 

1019. 

§ 

1020. 

:l- 

-1024. 

§ 

1021. 

1 

1022. 

S 

1023. 

1 

1024. 

8 

1025. 

1 

102fi. 

8 

1027. 

1 

1028. 

8 

1029. 

TABLE    OF    CONTENTS.  xliii 

§   1033.  Same;  essential  elements. 

f   1034.  2.  A  trust  declared  in  part  only  of  the  eat^te  conveyed. 

§   1035.  3.  In  conveyances  without  consideration. 

§   1036.  Parol  evidence. 

{{   1037-1043.  Second  form:  conveyance  to  A,  pric«?  paid  by  B. 

§   1038.  Special  rules. 

§   1039.  Purchase  in  name  of  wife  or  child. 

§   1040.  Admissibility  of  parol  evidence. 

5   1041.  The  same;  between  family  relatives. 

§   1042.  Legislation  of  several  states. 

§   1043.  Interest  and  rights  of  the  beneficiary. 

IS   1044-1058.  Second.     Constructive  trusts. 

§   1045.  Kinds  and  classes. 

§   1046.  1.  Arising  from  contracts  express  or  implied. 

§   1047.  2.  Money  received  equitably  belonging  to  another. 

5   1048.  3.  Acquisition  of  trust  property  by  a  volunteer,  or  purchaser 
with  notice. 

§   1049.  4.  Fiduciary  persons  purchasing  property  with  trust  funds. 

S   1050.  5.  Renewal  of  a  lease  by  partners  and  other  fiduciary  persons. 

S   1051.  6.  Wrongful  appropriation  or  conversion  into  a  different  form 
of  another's  property. 

S   1052.  7.  Wrongful  acquisition  of  the  trust  property  by  a  trustee  or 
other  fiduciary  person. 

§   1053.  8.  Trusts  ex  maleficio. 
,    §   1054.      (1)    A  devise  or  bequest  procured  by  fraud. 

§   1055.      (2)    Purchase  upon  a  fraudulent  verbal  proraiao. 

§   1056.      (3)    No  trust  from  a  mere  verbal  promise. 

§   1057.  9.  Trust  in  favor  of  creditors. 

{   1058.  Rights  and  remedies  of  the  beneficiaries. 

SECTION  VI. 

POWERS,  DUTIES,   AND   LIABILITIES   OF   EXPRESS   TRUSTEES. 

I   1059.  Divisions. 

§   1000.  First.     Powers  and  modes  of  acting. 

18   1061-1083.  Second.     Duties  and  liabilities. 

iS   1062-1065.  I.  To  carry  the  trust  into  execution. 

§   10(12.  1.  Tlie  duty  to  conform  strictly  to  the  directions  of  the  trust. 

§   1003.  2.  The  duty  to  account. 

8   1064.  3.  The  duty  to  obey  directions  of  the  court. 

5   1065.  4.  The  duty  to  restore  the  trust  property  at  the  end  of  the 
trust. 

is   1006-1074.  II.  To  use  care  and  diligence. 

§   1067.  1.  The  duty  of  protecting  the  trust  property. 

8   1068.  2.  The  duty  not  to  delegate  his  authority. 

8   1009.  3.  The  duty  not  to  surrender  entire  control  to  a  co-trastee. 

§   1070.  4.  The  amount  of  care  and  diligence  required. 

f   1071.  5.  The  duty  as  to  investments. 

8   1072.  The  necessity  of  making  lavestmenta. 


9- 

-1083. 

1 

1080. 

f 

1081. 

f 

1082. 

? 

1083. 

i 

1084. 

J 

1085. 

(, 

1086. 

Xliv  TABLE    OF    CONTENTS. 

8   1073.     Kinds  of  investments  :  When  particular  securities  are  «otpre«slj 

authorized. 
§   1074.     The  same:   When  no  directions  are  given. 
a   1075-1078.     III.  To  act  with  good  faith. 

§   1075.     1.  The  duty  not  to  deal  with  the  trust  property  for  his  ovm 

advantage. 
I    1076.     2.  The  duty  not  to  mingle  trust  funds  with  his  own. 
J    1077.     3.  The  duty  not  to  accept  any  position,  or  enter  int«  any  re- 
lation, or  do  any  act  inconsistent  with  the  interests  of  the 
beneficiary. 
S    1078.     4.  The  duty  not  to  sell  trust  property  to  himself,  nor  to  buy 
from  himself. 
H    1079-1083.     IV.  Breach  of  trust,  and  liability  therefor. 
Nature  and  extent  of  the  liability. 
Liability  among  co-trustees. 
Liability  for  co-trustees. 

The  beneficiaiy  acquiescing,  or  a  party  to  the  breach  of  trujrL 
Third.    The  trustee's  compensation  and  allowances. 
Allowances  for  expenses  and  outlays;  lien  therefor. 
Fourth.     Removal  and  appointment  of  trustees. 
3    1087.     Appointment  of  new  trustees. 

SECTION  VII. 

CX5BPOBATION   DIRECTORS   AND  OTHEB  QUASI   TRUSTEES. 

f  1088.  Quasi  trustee;   fiduciary  persons. 

i  1089.  Corporation  directors  and  officers. 

i  1090.  Trust  relations  in   stock  corporations. 

5  ;091.  Liability  of  directors  for  a  violation  of  their  truft!.. 

J  1092.  First  class:  Directors  guilty  of  fraudulent  misrepreaeTHa-tJon*, 

etc. 

i  1093.  Second  class:     Ultra  vires  proceedings  of  directors. 

{  ;094.  Third  class:      Wrongful   dealing  with   corporate  pro^^rtr. 

i  1095.  Fourth  class:     The  same;  the  corporation  refuses  to  sue. 

i  1096.  Special  cla-ssea. 

5  1097.  Guardians. 


CHAPTER  SEOOKD. 

r::":\TEs  and  interests  of  iiAHuiEi)  womils. 

SECTION  I. 

TUK   SlCrAUATE   ESTATE  OK   MARRIKO   WOMKN. 

101)8.  Ori;;in  and  general  natuie. 

1099.  Statutory  legal  separate  estal*  in  the  United  St:.i»-« 

1100.  How  tlie  sci)ariitc  estate  is  creatod  ;  trustees  not  neccssaxr 

1101.  The  same:     By  what  modes  and  instrument*. 

1102.  The  same:      What  words  are  aullicient. 

1103.  What  proi>erty  is  included. 


1104. 

1105. 

1106. 

1107. 

1108. 

1109. 

1110. 

1111. 

1112. 

1113. 

TABLE    OF    CONTENTS.  xlv 

Her  power  of  disposition. 

The  same  in  the  United  States. 

Her  disposition  under  a  power  of  appointment. 

Restraints  upon  anticipation. 

What  words  are  sufficient  to  create  a  restraint. 

Eflfect  of  the  restraint. 

End  of  the  separate  estate;  its  devolution  on  the  wife's  death. 

Pin-money. 

Wife's  paraphernalia. 

Settlement  or  conveyance  by  the  wife  in  fraud  of  the  marriage. 


SECTION  II. 

THE  wife's   equity   TO  A   SETTLEMENT. 

f  1114.  General  nature. 

I  1115.  Extent  of  the  wife's  equity:  to  what  property  and  against  what 

persons. 

f  1116.  When  the  equity  does  not  arise. 

§  1117.  Amount  of  the  settlement. 

f  1118.  Form  of  the  settlement. 

I  1119.  Maintenance  of  wife. 

i  1120.  Alimony. 

SECTION  III. 

THE    CONTRACTS    OF    MARRIED    WOMEH. 

S  1121.  The  general  doctrine. 

S  1122.  Rationale  of  the  doctrine. 

§  1123.  Extent  of  the  liability. 

S  1124.  For  what  contracts  her  separate  estate  is  liable. 

§  1125.  The  same;  the  American  doctrine. 

i  1126.  To  what  contracts  the  American  doctrine  applies. 

CHAPTER  THIRD. 

ESTATES  AND  INTERESTS  ARISING  FROM  SUCCESSION  TO  A  DECEDEWTr 

SECTION  I. 

LEGACIES. 

Jurisdiction  of  equity. 

The  same:   where  originally  exclusive. 

The  same:  in  the  United  States. 

Kinds  of  legacies. 

Specific  legacies. 

Ademption  of  specific  legaciei. 

General  legacies. 

Demonstrative  legacies. 

Annuities. 


i 

1127. 

s 

1128. 

s 

1129. 

130-1134. 

s 

1130. 

s 

1131. 

s 

1132. 

s 

1133. 

§ 

1134. 

1135-1143. 

1135. 

1136. 

1137. 

1138. 

1139. 

1140. 

1141. 

1142. 

1143. 

1144. 

1145. 

llvi  TABLE    OP    CONTENTS. 

IS  1135-1143.     Abatement  of  legacies. 

Abatement  in  general:  order  of  appropriating  aasetib 

Nature  of  abatement. 

Abatement  of  specific  legacies. 

Abatement  of  demonstrative  legacies. 

Abatement  of  general  legacies. 

Limitations;  intention  of  testator. 

Exceptions ;  legacies  to  near  relatives. 

The  same;  legacy  for  a  valuable  considcraticHk 

Appropriation  of  a  fund. 

Lapsed  legacies. 

The  same;  statutory  changes. 

SECTION  IL 

DONATIONS  CAUSA  MORTMu 

1146.  General  nature. 

1147.  Is  not  testamentary. 

1148.  The  subject-matter  of  a  valid  g^t* 

1149.  Delivery. 

1150.  Revocation. 

1151.  Equitable  jurisdiction. 

SECTION  in. 

ADMINISTRATION   OF  ESTATES. 

i  1152.     Equitable  jurisdiction  in  the  United  States. 
I  1153.     The  same;  fundamental  principle;  Rosenburg  v.  Frank. 
I  1154.     The  jurisdiction  as  administered  in  the  several  states;  general 
r^sum€  —  the  states  alphabetically  arranged  in  foot-note. 

SECTION  IV. 

CONSTRUCTION   AND  ENFORCEMENT  OP  WUXS. 

I  1155.  Origin  of  the  jurisdiction. 

I  1156.  Extent  of  the  jurisdiction;  a  branch  of  that  over  trust*. 

I  1157.  The  same;  a  broader  jurisdiction  in  some  states. 

I  1158.  Suit  to  establish  a  will. 

CHAPTER  FOUETH. 

EQUITABLE    ESTATES    ARISING    FKOM    CONVERSTOH'. 

SECTION   I. 

THK  OONVCRSIOR  OF  BTAI.  ESTATE  INTO  PERSONAL,  AND  OF  PERSONAL  ESTATE  IKTO 

REAL. 

I  1169.  Definition  and  general  nature. 

I  1160.  I.     What  words  are  sufncient  to  work  a  conversion. 

I  1161.  The  same;  under  a  contract  of  sale. 

I  1162.  II.     Time  from  which  the  conversion  takes  effect. 


TABLE    OF    CONTENTS.  xlvil 

1163.  The  same;  in  contracts  of  sale  with  option. 

1164.  III.    Effects  of  a  conversion;  land  directed  or  agreed  to  be  sold. 

1165.  The  same;  money  directed  or  agreed  to  be  laid  out  in  land. 

1166.  Limitations  on  these  effects. 

1167.  Conversion  by  paramount  authority;  compulsory  sale  of  land 

under  statute;  sale  by  order  of  court. 
ft  1168.     Conversion  as  between  life  tenant  and  remainder-man. 

SECTION  II. 

•rXULTINO  TRUST  UPON   A   FAILURE  OF  THE   PUBPOSES  OF  TUB  CONVERSIOIf. 

S   1169.  The  questions  stated;  object  and  extent  of  the  doctrine. 

i   1170.  A  total  failure  of  the  purpose. 

$   1171.  Partial  failure;  wills  directing  conversion  of  land  into  money. 

8   1172.  The  same ;  wills  directing  the  conversion  of  money  into  land. 

ft   1173.  The  same;  deeds  directing  the  conversion  of  land  into  money. 

S  1174.  The  same;  deeds  directing  the  conversion  of  money  into  land. 

SECTION  III. 

RECONVERSION. 

f  1175.  Definition:  /Jo<tonaie  of  the  doctrine. 

{  1176.  Who  may  elect  to  have  a  reconversion. 

§   1177.  Mode  of  election. 

i  1178.  Double  conversion. 


CHAPTER  FIFTH. 

MORTGAGES   OF  LAND. 

SECTION  I. 
THE  ORIGINAL  OE   ENGLISH   DOCTBINTS. 

f  1179.  The  common  law  doctrine:  Statute  of  7  Geo.  II.,  c.  20. 

f  1180.  Origin  and  development  of  the  equity  jurisdiction;  the  "  equity 

of  redemption." 

i   1181.  The  equitable  theory. 

$    1182.  The  double  system  at  law  and  in  equity. 

?   1183.  The  legal  and  the  equitable  remedies. 

(   1184.  Peculiarities  of  the  English  system. 

I   1185.  Subsequent  mortgages  equitable,  not  legal. 

SECTION   II. 

THE   AMERICAN   DOCTRINE. 

t  1186.     In  general:  Two  methods  prevailing. 

9  1187.     First   method:    Both    the    legal    and   the   equitable    theoriet; 

states  arranged  alphabetically  in  foot-note. 
i  1188.     Second  method:  The  equitable  theory  alone;  states  arranged 

in  foot-not«. 


{  1192. 

§  1193. 

{  1194. 

§  1195. 

S  1196. 

fi 

1197-1199. 

§  1197. 

§  1198. 

§  1199. 

fl 

1200-1203. 

§  1200. 

§  1201. 

§  1202. 

i  1203. 

Xlviii  TABLE    OF    CONTENTS. 

§   1189.     The  same:   The  mortgagee  in  possession. 

§   1190.     The  same:   Equitable  remedies  of  the  partic*. 

I  1191.     Definition  of  mortgage. 

SECTION    III. 

VARIOUS   FORMS   ANU  KINDS  OF   MORTGAGE. 

In  equity  a  mortgage  is  a  security  for  a  debt. 

Once  a  mortgage  always  a  mortgage. 

Mortgage   and   conveyance  with   an   agreement  of  repurchaae, 

distinguished. 
The  general  criterion:  the  continued  existence  of  a  debt 
A  conveyance  absolute  on  its  face  may  be  a  mortgage. 
Mortgage  to  secure  future  advances. 
As  between  the  immediate  parties. 
As  against  subsequent  incumbrancers  and  purchasers. 
As  aflected  by  the  recording  act. 
Mortgages  to  secure  several  different  notes. 
As  between  the  original  parties. 

Assignees  of  the  notes ;  order  of  priority  among  them. 
Effect  of  an  assignment  of  the  notes. 
Priority  between  an  assignee  and  the  mortgagee. 

SECTION    IV. 

UTTEBESTS,  BIGHTS,  AND  LIABILITIES  OF  THE  MOBTGAGOB  AND  OF  THE  MOBTOAOEB. 

General  interests  of  the  mortgagor  and  the  mortgagee. 

I.  Conveyance  by  the  mortgagor. 
Conveyance  "  subject  to  ''  the  mortgage ;  effect  oL 
Grantee  "  assumes  "  the  mortgage;  effect  of. 
Rationale  of  the  grantee's  liability. 
Assumption  by  a  mortgagee. 

II.  Assignment  of  the  mortgage. 
Assignment  at  law  and  in  equity. 
Assignment  of  the   debt  is,   in   equity,  an  assignment  of  the 

mortgage;  what  operates  as  such  assignment. 
Equitable  assignment  by  subrogation. 
In  whose  favor  such  equitable  assignment  exists. 
In  whose  favor  such  equitable  assignment  does  not  exist. 
Right  to  compel  an  actual  assignment. 

III.  Rights  and  liabilities  of  mortgagee  in  possession. 
To  whom  the  doctrine  applies  in  different  states. 
With  what  he  is  chargeable;  rents  and  profits,  willful  default. 
His  allowances  and  credits,  disbursements,  repairs,  improve- 
ments, compensation. 

Liability  to  account. 

IV.  Redemption  from  the  mortgage. 
By  the  mortgagor;  suit  to  redeem. 
By  other  persons. 
Rights  of  contribution   and   of  exoneration   upon   redemption. 

i   1221.     General  doctrine;  classes  of  cases;  equities  equal  or  unequal. 


§  1204. 

li 

1205-1208. 

§  1205. 

§  1206. 

§  1207. 

§  1208. 

li 

1209-1214. 

5  1209. 

5  1210. 

§  1211. 

§  1212. 

§  1213. 

§  1214. 

If 

1215-1218. 

8  1215. 

1  1216. 

§  1217. 

5  1218. 

If 

1219  1226. 

§  1219. 

§  1220. 

li 

1221-1226. 

TABLE    OF    CONTENTS.  xllX 

J  1222.      (1.)   Where  their  equities  are  equal;  titles  simultaneous. 

J  1223.  (2.)  Where  their  equities  are  unequal,  although  the  titles  are 
simultaneous;  tenants  for  life  or  for  years  and  remainder- 
men; dowress  and  reversioner. 

i  1224.  (3.)  Inequality  of  equities  where  titles  are  not  simultaneous; 
between  mortgagor  and  his  grantee  of  a  parcel ;  between 
successive  grantees ;  inverse  order  of  alienation. 

f  1225.  The  same;  what  circumstances  disturb  these  equities,  and  de- 
feat this  rule. 

(  1226.     (4.)   A  release  by  the  mortgagee  of  one  or  more  parcels. 

?   1227.     V.  Foreclosure;   foreclosure  proper  or  "strict  foreclo.sure." 

{   1228.     Foreclosure  by  judicial  sale. 


CHAPTER  SIXTH. 

MORTGAGES  OF  PERSONAL  PROPERTY  AND  PLEDGES. 

{  1229.  General  nature  of^  at  law. 

5  1230.  Jurisdiction  and  remedies  in  equity. 

i  1231.  Pledges:  Equitable  jurisdiction  and  remedies. 

i  1232.  Chattel  mortgages  in  California. 


CHAPTER  SEVEI^'TH, 

EQUITABLE    LIENS. 
SECTION   I. 

THEIB    GENERAL    NATURE. 

!  1233.     What  are  included  in  this  term;  what  is  an  equitable  lien.- 
i  1234.     Origin  and  rationale  of  the  doctrine. 

SECTION  II. 

ARISING  FROM  EXPRESS  CONTRACT. 

4  1235.     The  general  doctrine;  requisites  of  the  contract. 
(   1236.     On  property  to  be  acquired  in  future. 

I  1237.  The  form  and  nature  of  the  agreement;  illustrations  of  par- 
ticular  agreements;  agreements  to  give  a  mortgage;  de- 
fective mortgages ;  assignments ;  bills  of  exchange,  etc 

SECTION  III. 

ARISING   FROM   IMPLIED   COimiACTS. 

f  1238.  Nature  of  "  implied  contract  "  in  equity. 

I  1239.  General  doctrine  as  to  liens  arising  ex  cequo  et  bono, 

\  1240.  Expenditure  by  one  joint  owner. 

(  1241.  Expenditure  for  the  benefit  of  the  true  owner, 

5  1242.  Expenditure  by  a  life-tenant. 
S  1243.  In  other  special  cases. 

Vol.  I  —  iv 


TABLE    OF    CONTENTS. 
SECTION  IV. 

ARISING  FROM  CHARGES  BY  WIIX  OR  BY  DEFD. 

I  1244.     Greneral  doctrine;  nature  of  a  charge. 

$   1245.     What  amounts  to  a  charge  creating  such  a  lien. 

§   1246.     The  same ;  express  charge. 

f   1247.     The  same;  implied  charge;  English  and  American  rules  stated 

in  foot-note. 
f   124S.     Observations  upon  the  rules  adopted  by  American  courts. 


SECTION  V. 

TIIE   grantor's   LIEN,   ON   CONVEYANCE. 

if   1249-1254.  Tlie  ordinary  grantor's  lien   for  unpaid   purchase   pric» 

§   1249.  General  doctrine;   in  what  states  adopted  or  rejected;  states 
classified  in  foot-notes. 

I   1250.  Origin  and  rationale;  Ahrend  v.  Odiorne  discussed. 

f   1251.  Requisites,  extent,  and  effects  of  this  lien;  great  uncertainty 
and  conflict  in  the  results  of  judicial  opinion. 

§   1252.  How  discharged  or  waived ;  effect  of  taking  other  security,  etc 

§   1253.  Against  whom  the  lien  avails. 

§   1254.  In  favor  of  whom  the  lien  avails;  whether  or  not  assignable. 

CS   1255-1259.  Grantor's  lien  by  reservation. 

§   1255.  General  description. 

§   125G.  What  creates  a  lien  by  reservation. 

§   1257.  Essential  nature  of  the  lien. 

§   1258.  Its  operation  and  effect. 

S  1259.  The  grantor's  dealing  with  this  lien;  waiver;  assignment. 

SECTION  VI. 

THE   vendor's   LIEN    AND   THE   VENDEE'S    LIEN,   ON    CONTRACT   FOB    SALE   AlTD 

PURCHASE. 

f  I   1260-1262.     Vendor's  lien  under  contract  of  sale. 

§   1260.     General  doctrine;  vendor's  lien  and  grantor's  lien  distinguished. 
t  1261.     Essential  nature  and  effects;  vendor's  interest  determined  by 

doctrine  of  equitable  conversion. 
I   1262.     How  enforced. 
i   1263.     Vendee's  lien  for  purchase  money  paid* 

SECTION  VII. 

ARISING    FROM    A    DEPOSIT   OF   TITLE    DE^CDS. 
I   1264.     The  English  doctrine. 
I   1285.     The  dontrine  in  the  United  States. 

{   1260.     DiHtinftion  .siiggostod,  as  a  conclusion  from  American  ca«ek. 
4  1207.     How  this  lien  is  enforced. 


TABLE    OF    CONTENTS.  11 

SECTION  VIII. 
VARIOUS  STATaXOBY  LIENS. 

f  1268.     General  nature  and  tendency  of  American  legislation  on   ttiia 

subject;  various  examples, 
f  1269.     How  such  liens  are  enforced. 

CHAPTER  EIGHTH. 

ESTATES   AND  INTEEESTS   ARISING   FROM   ASSIGNMENTS. 
SECTION   I. 

ASSIGNMENT   OF   THINGS   IN   ACTION. 

Original  doctrines  at  law  and  in  equity. 

Rationale  of  the  equitable  doctrine. 

Assignment  of  things  in  action  at  common  law. 

The  same ;  under  statutory  legislation. 

Interpretation  of  this  legislation  as  contained  in  the  Heformed 

Procedure. 
What  things  in  action  are  or  are  not  thus  legally  assignable. 
Assignments  forbidden  by  public  policy. 
The  equitable  jurisdiction;  under  the  Reformed  Procedure. 
The  equitable  jurisdiction;  under  the  common  law  procedure. 
Incidents  of  an  assignment. 

SECTION  II. 

EQmTABLE   ASSIGNMENT  OF   A   FUND   BY   ORDER   OB   OTHERWISE. 

{    1280.     The   general    doctrine;    its    requisites,    scope,    operation,    and 

efifects. 
S    1281.     Notice  to  the  creditor-assignee,  essential. 
f    1282.     A  mere  mandate  to  a  depositary  or  agent,  is  not  an  equitable 

assignment,  but  is  revocable;  an  appropriation  ia  necessary. 
5    1283.     Funds  not  yet  in  existence. 
i    1284.     Operation  of  bills  of  exchange  and  checks. 

SECTION  III. 

ASSIGNMENT   OF   POSSIBILITIES,    EXPECTANCIES,    AND    PROPERTY    TO    BE    ACQXnRED 

IN  FUTURE. 

§   1285.     Equitable  jurisdiction  under  modern  legislation. 

f    1286.     Essential  elements  and  grades  of  contingencies,  expectancies, 

and  possibilities. 
I    1287.     Assignment  of  possibilities. 
§   1288.     Assignment  of  personal  property  to  be  acquired  in  the  future; 

rationale  of  the  doctrine ;  Holroyd  v.  Marshall. 
i   1289.     Assignment  of  future  cargo  or  freight. 
f    1290.     Requisites  of  an  assignment  of  property  to  be  acquired  in  thp 

future. 
I    1291.     Extent  of  the  doctrine,  to  what  property  and  persons  it  applies 


1270. 

1271. 

1272. 

1273. 

1274. 

1275. 

1276. 

1277. 

1278. 

1279. 

lii  TABLE    OF    CONTENTS. 

CHAPTER  NINTH. 

CONTRACTS    IN    EQUITY. 
SECTION   I. 

GEKEBAl,    DOCTBINE    CONCERNING    C0NTBACT8. 

S  1292.  Object  of  this  chapter. 

§  1293.  What  constitutes  a  contract. 

§  1294.  Equitable  contract  by  representations  and  acts. 

i  1295.  EflFects  of  a  contract  in  equity;  covenant  creating  an  equitable 

servitude. 

I  1296.  Effects  of  contracts  in  general. 

{  1297.  Enforcement  of  contracts  in  equity. 

SECTION  II. 

EQUITABLE  DEBTS. 

f  1298.     General  nature. 

§   1299.     Husband's  liability  for  wife's  necessaries. 

S   1300.     Liability  for   money   advanced  to   pay  debts   of  a    porson    in- 
capable of  contracting. 
S  1301.     On  death  of  one  joint  debtor. 
(  1302.     On  death  of  a  joint  surety. 

CHAPTER  TENTH. 

PERSONS   NOT   SUI   JUiilS. 

SECTION   I. 
INFANTS. 

I  1303.  Questions  stated. 

S   1304.  Origin  of  the  equitable  jurisdiction  over  iiifiints. 

§   1305.  How  jurisdiction  is  acquired;  infant  made  a  "  ward  of  court.* 

fi   1306-1307.  Extent  of  the  jurisdiction. 

§   1306.  Appointment  of  guardians. 

§   1307.  Custody  of  infants;  custody  of  parents  when  controlled. 

II    1308-1310.  How  the  jurisdiction  is  exercised. 

§   1308.  Supervision  of  the  guardian. 

S   1309.  Management  of  property. 

I   1310.  Marriage  of  infant  ward. 

SECTION  II. 

PERSONS    OF    UNSOUND    MIND. 

S  1311.  Origin  of  this  jurisdiction. 

S  1312.  Mo<le  of  exercising  tlie  jurisdiction  in  England, 

I  1313.  Jurisdiction  in  tlie  United  Stntes. 

S  1314.  Jurisdiction   in  cases  of  weak  or  unsound  mind. 


TABLE    OF    CONTENTS.  liu 

CONTENTS  OF  VOLUME  IV. 


PAET  FOURTH. 

THE  REMEDIES  AND  REMEDIAL  RIGHTS  WHICH  ARE  CONFERRED 
BY  THE  EQUITY  JURISPRUDENCE. 

PRELIMINARY   SECTION. 

§   1315.  Gtcneral  object. 

S   1316.  Classification. 

I   1317.  Remedies  acting  in  rem  or  in  personam. 

i  1318.  Remedies  in  personam  beyond  the  territorial  jurisdiction. 

FIRST  GROUP. 

REMEDIES  PURELY  ANCILLARY  AND  PROVISIONAL. 

CHAPTER  FIRST. 

INTERPLEADER. 

t  1319.  Description  of  this  group. 

§  1320.  General  nature  and  objects  of  interpleader. 

§  1321.  The  claims  legal  or  equitable. 

§  1322.  Essential  elements. 

§  1323.  First.    Tlie  same  thing,  debt,  or  duty. 

§  1324.  Second.     Privity  between  the  opposing  claimants. 

§  1325.  Third.     Plaintiff  a  mere  stakeholder. 

§  1326.  Fourth.    No  independent  liability  to  one  claimnnt. 

{  1327.  By  bailees,  agents,  tenants,  and  parties  to  contractab 

S  1328.  Pleadings  and  other  procedure. 

I  1329.  Interpleader  in  legal  actions  by  statute. 

CHAPTER  SECOND. 

RECEIVERS. 

J  1330.  Definition,  general  nature,  and  objects. 

§  1331.  The  appointment  discretionary. 

If  1332-1335.  Cases  in  which  a  receiver  may  be  appointed, 

§  1332.  First  class. 

§  1333.  Second  class. 

§  1334.  Third  class. 

f  1335.  Fourth  class. 

i  1336.  Their  powers,  rights,  duties,  and  liabilities. 


liv  TABLE    OF    CONTENTS. 

SECOND  GROUP. 

REMEDIES  PURELY  PREVENTIVE. 

CHAPTER  FIRST. 

INJUNCTIONS. 

SECTION   I. 

TO   PBOTECT   OB  BESTBATN   THE  VIOLATION   OF  OBLIGATIONS   ANT>  BIGTrTS   OT   PBOT- 
EKTY   OB   OF   CONTRACT,   EITHER   LEGAL   OR   EQITITABLK. 

General   nature  and  objects :    Interdicts. 

Fundamental   principle. 

To  protect  purely  equitable  estates  or  interests,  and  in  aid  ol 

purely  equitable  remedies. 
The  same:     Particular  instances. 
if    1141-1344.     To  prevent  the  violation  of  contracts. 
General  doctrine. 

( 1 )  Pvestrictive  covenants  creating  equitable  easemeTitai 

(2)  Contracts  for  personal  services  or  acta. 

(3)  Other  agreements,  generally  negative  in  their  nature. 
Miseellnnoous  cases:     Corporations  and  their  officers;  between 

mortgagor  and   mortgagee;    public  officers;   cloud  on  title; 
married  women's  property;   partners,  etc 


SECTION   II. 

TO  PRE\T:NT  or   restrain   the  commission  of  T(iBTa. 

The  estates  and  interests  generally  legal. 

Kinds  and  classes  of  torts  restrained. 

Waste. 

Nuisance:      Public. 

Nuisance:      Private;   when  restrained. 

Same:      Instances;  violations  of  easements. 

Patent  rights  and  copyriglits. 

Literary  property  as  distinct  from  copyright. 

Trade-markfl. 

Good-will. 

Trespasses. 

General  doctrine;  eases  in  which  trespass  may  be  enjoined. 

Slander  of  title;   libels;   wrongful  use  of  name. 


1337. 

;i38. 

1J39. 

1340. 

1141- 

1344. 

1341. 

1342. 

1343. 

1344. 

1345. 

1346. 

1347. 

1348. 

1349. 

1 350. 

1351. 

1 352. 

1353. 

1  354. 

1 355, 

1  35f5. 

1357. 

1358. 

SECTION  III. 

mandatory  injunctions. 
i    Kiril).     Nature  and  object;  When  granted. 


TABLE    OF    CONTENTS.  Iv 

SECTION  IV. 
TO    RE3TBAXN    ACTIONS   OB   JUDGMENTS    AT   UVVV. 

I   1360.     Origin  of  the  jurisdiction. 

$    1361.     When  the  jurisdiction  is  not  exercised;   General  doctrine. 

I  1362.  When  the  jurisdiction  may  be  exercised:  First  class;  ex- 
clusive equitable  interests  or  rights  involved. 

{    1363.     The  same:      Second  class;  legal  remedies  inadequate. 

}  1364.  The  same:  Third  class;  fraud,  mistake,  or  accident  in  the 
trial  at  law. 

{    1365.     Jurisdiction  to  grant  new  trials  at  law  in  the  United  States. 

CHAPTETt  SECOND. 

EQUITABLE  DEFENSES  INTERPOSED  IN  LEGAL  ACTIONS,  AS  A  SUBSTI- 
TUTE FOR  INJUNCTIONS. 
§   1366.     General  object. 

5   1367.     Equitable  pleas  under  the  common  law  procedure. 
§    1368.     Equitable  defenses  under  the  reformed  procedure. 
§   1369.     Meaning  and  nature  of  an  equitable  defense. 
5   1370.     General  effect:     Injunction  against  actions  at  law  unnecessary. 
§   1371.     Cases  in  which  an  injunction  may  still  be  necessary:     First 

class;  to  avoid  multiplicity  of  suits. 
5   1372.     The  same:     Second  class;  new  parties  needed. 
5   1373.     The  same:     Tliird  class;  no  affirmative  relief. 
§   1374.     Some  illustrations  of  equitable  defenses. 

THIRD    GROUP. 

REMEDIES    WHICH   INDIRECTLY   ESTABLISH    OR    PROTECT    INTER- 
ESTS AND  PRIMARY  RIGHTS,  EITHER  LEGAL  OR  EQUITABLE. 


CHAPTER  FIRST. 

REFORMATION    AND    CANCELLATION. 

J   1375.     General  nature  and  object. 

{   1376.     Reformation  and  re-execution  of  instruments. 

I   1377.     Cancellation,  surrender  up,  or  discharge  of  instrumentA. 


Ivi  TABLE    OF    CONTENTS. 


FOURTH  GROUP. 

REMEDIES    BY    WHICH    ESTATES,    INTERESTS,    AND    PRmARY 

RIGHTS,    EITHER    LEGAL    OR    EQUITABLE,    ARE    DIRECTLY 

DECLARED,    ESTABLISHED,    OR    RECOVERED,    OR    THE 

ENJOYMENT  THEREOF    FULLY   RESTORED. 

CHAPTER  FIRST. 

•XHTS    BY    WHICH    PURELY    LEGAL   ESTATES    ARE   ESTABLISHED.    ANT> 

THE  ENJOYMENT  THEREOF  RECOVERED:   NAMELY,   A£SIGNMl:->'T 

OF    dower:    ESTABLISHMENT    OF   DISPUTED    BOUNDARIES; 

PARTITION    OF    LAND,    AND   OF    PERSONAL   PROPERTY. 

f   1378.  General  nature  and  object  of  this  group. 

§   1379.  Nature  and  object  of  the  first  class. 

iS   1380-1383.  Assignment  of  dower. 

§   1380.  L^al  remedies. 

§   1381.  Origin  and  grounds  of  the  equitable  jurisdiction. 

S   1382.  The  jurisdiction  now  concurrent, 

§  1383.  Exclusive  jurisdiction  over  dower  in  equitable  estate*. 

§   1384.  Establishment  of  disputed  boundaries. 

§   1385.  Tlie  same;  equitable  incidents  and  grouuilA. 

18   1386-1300.  Partition  of  lands. 

§   1386.  Common  law  remedy. 

S   1387.  Equitable  jurisdiction  and  remedies, 

§   1388.  The  title  of  the  plaintiff. 

§   1389,  Mode  of  partition. 

§   1390.  Partition  by  means  of  a  sale. 

§   1391.  Partition  of  personal  property. 

f   1392.  Tlie  same:   issue  of  title. 

CHAPTER  SECOND. 

'SUITS    BY    WHICH    SOME    GENERAL    RIGHT,    EITHER   LEGAL   OR   EQUI- 
TABLE,   IS    ESTABLISHED.       BILLS    OF    PEACE,    AND    BILLS    QUIA 
TIMET  ;   QUIETING  TITLE. 

S   1393.     Nature  and  object. 

i   1394.     Bills  of  peax;e;  bills  quia  timet;  quieting  title. 

CHAPTER  THIRD. 

■  UIT8   BY   WIITCn    SOME   PARTICULAR  ESTATE,   INTEREST,   OR  KTOHT, 

EITHER    LEGAL    OR    EQUITABLE,    IS    ESTABLISHED.       STATUTORY 

SUIT   TO    QUIET   TITLE;    SUIT   TO  REMOVE   A   CLOUD   FROM 

TITLE. 
I    1395.     Nature  and  object. 
I    1396.     Statutory  suit  to  quiet  title;  legislation. 


TABLE    OF    CONTENTS.  Ivii 

I   1397.     The  same;  essential  features  asd  requisites;  possesBion;  title. 

S    1398.     Suit  to  remove  a  cloud  from  title;  to  prevent  a  cloud. 

8   1399.     The  same;  when  the  jurisdiction  is  exercised;  general  doctrine. 


FIFTH  GROUP. 

REMEDIES  BY  WHICH  EQUITABLE  OBLIGATIONS  ARE  SPECIFICALLY 
AND   DIRECTLY   ENFORCED. 


CHAPTER  FIRST. 

SPECIFIC    PERFOEMANCE    OF    CONTRACTS, 

Nature  and  object. 

Specific  performance  of  contracts;  grounds  of  the  jurisdiction. 

Extent  of  the  jurisdiction;   inadequacy  of  damages;   various 
kinds  of  contracts. 

The  same:     Impracticability  of  the  legal  remedy. 

The  jurisdiction  discretionary. 

Essential  elements   and   incidents. 

Rights  unaer  the  contract ;  effect  of  events  without  the  agency 
of  the  parties. 

Performance  by  plaintiff  a  condition  precedent. 

Time  as  affecting  the  right  to  a  performance. 
{    1 109.     Enforcement  of  verbal  contracts  part  performed, 
i    1410.     Damages  in  place  of  a  specific  performance. 

CJEIAPTER  SECOND. 

BPBCIFIO    ENFORCEMENT    OF    OBLIGATIONS    ARISING    FROM    TRUSTS 
AND    FIDUCIARY    RELATIONS. 

S   1411.     General  nature,  kinds,  and  classes. 

I   1412.     Suits  against  corporations  to  compel  the  transfer  or  issue  of 
stock. 

SIXTH  GROUP. 

REMEDIES  IN  WHICH  THE  FINAL  RELIEF  IS  PECUNIARY,  Bur 

IS   OBTAINED  BY  THE   ENFORCEMENT   OF   A   LIEN   OR 

CHARGE  UPON  SOME  SPECIFIC  PROPERTY  OR  FUND. 


CHAPTER  FIRST. 

FOBECI.0STTRE  SUITS;    MARSHALING   SECURITIES;   CREDITORS'   SUITS. 

§  1413,     Nature,  kinds,  and  classes. 

J   1414.     Suits  for  marshaling  of  securities. 

I   1415.     Creditors'  suits. 


1400. 

1401. 

1402. 

1403. 

1404, 

1405. 

1406. 

1407. 

1108. 

Iviii  TABLE    OF    CONTENTS. 


SEVENTH  GROUP. 

REMEDIES  IN  WHICH  THP.  FINAL  RELIEF  IS  WHOLLY  PECUNIARY, 
AND  IS  OBTAINED  IN  THE  FORM  OF  A  GEN- 
ERAL PECUNIARY  RECOVERY. 


CHAPTER  FmST. 

BUITS   FOR   CONTRIBUTION,    EXONERATION,    AND   SUBROOATIO:t. 

S  1416.  General  nature,  kinds,  and  classes. 

{  1417.  Exoneration;  rights  of  sturety  against  the  principal. 

{  1418.  Contribution. 

f  1419.  Subrogation. 

CHAPTER  SECOKD. 

SUITS  FOE  AN  ACCOUNTING. 

I  1420.     Origin  of  th^  equitable  jurisdiction. 

t  142L     £xt«Jit  of  the  equitable  jurisdiction ;  when  exercised. 


A  TREATISE 

ON 

EQUITY  JURISPRUDENCE. 


TREATISE 


EQUITY  JURISPRUDENCE. 


II^TBODUOTORY   CHAPTEE. 


SECTION  I. 

THE  ORIGIN  OF  EQUITY  JURISDICTION  AND  JURISPRUDENCE. 

ANALYSIS. 

§   1.  Object  of  this  Introduction. 
§§  2-9.  ^quitas  in  the  Roman  Law. 
•§§   10-42.  Origin  of  Equity  in  the  English  Law. 
§§    10-13.  Primitive  condition  of  the  law  and  the  courts, 
§§   14,  15.  Early  influence  of  the  Roman  Law. 
§§    16-29.  Causes  which  made  a  court  of  equity  necessary. 
§§  21-23.  Tlie  earliest  common-law  actions  and  procedure. 

§  24.   Statute  of  Edward  I.  concerning  new  writs. 
§§  25-29.  Limited  results  of  this  legislation. 
§§  30-42.  Commencement  and  progress  of  the  chancery  jurisdiction. 

§  31.  Original  powers  of  the  King's  Council. 

§  32.  Original  common-law  jurisdiction  of  the  Chancellor. 
§§  33-35.  Jurisdiction    of   grace   transferred   to   the   Chancellor;    Statute   24 

Edward  III. 
§§   36-39.  Development  of  the  equitable  jurisdiction. 

§   40.  Abolition  of  the  court  in  England  and  in  many  American  states. 
§§  41,  42.  Equity  jurisdiction  in  other  American  states. 

§  1.  Object  of  This  Introduction.—  It  is  not  my  purpose 
to  attempt  a  complete  and  detailed  history  of  equity  as  it 
exists  in  England  and  in  the  United  States.  That  work 
has  already  been  done  by  Mr.  Spence,  in  his  Equitable 
Jurisdiction  of  the  Court  of  Chancery.  Some  general 
account,  however,  of  the  origin  of  the  equitable  jurisdic- 

[1] 


§    2  EQUITY   JURISPRUDENCE.  2 

tion,  of  the  sources  from  which  the  principles  and  doc- 
trines of  the  equity  jurisprudence  took  their  rise,  and  of 
the  causes  which  led  to  the  establishment  of  the  Court  of 
Chancery,  with  its  modes  of  procedure  separate  and  dis- 
tinct from  the  common-law  tribunals,  with  their  prescribed 
and  rigid  forms  of  action,  is  absolutely  essential  to  an 
accurate  conception  of  the  true  nature  and  functions  of 
equity  as  it  exists  at  the  present  day.  I  shall  therefore 
preface  this  introductory  chapter  with  a  short  historical 
sketch,  exhibiting  the  system  in  its  beginnings,  and  de- 
scribing the  early  movements  of  that  progress  through 
which  its  principles  have  been  developed  into  a  vast  body 
of  doctrines  and  rules  wiiich  constitute  a  most  important 
department  of  the  municipal  law. 

§  2.  ^quitas  in  the  Roman  Law. —  The  growth  and 
functions  of  equity  as  a  part  of  the  English  law  were  an- 
ticipated by  a  similar  development  of  the  same  notions 
in  the  Roman  jurisprudence.  In  fact,  the  equity  admin- 
istered by  the  early  English  chancellors,  and  the  jurisdic- 
tion of  their  court,  were  confessedly  borrowed  from  the 
cequitas  and  judicial  powers  of  the  Roman  magistrates; 
and  the  one  cannot  be  fully  understood  without  some 
knowledge  of  the  other.  This  intimate  connection  be- 
tween the  two  systems  is  a  sufficient  reason  or  excuse 
for  the  following  brief  statement  of  the  mode  in  which 
cequitas  was  introduced  into  the  Roman  law,  and  of  the 
important  part  which  it  performed,  under  the  great  ju- 
rists and  magistrates  of  the  empire,  in  shaping  the  doc- 
trines of  that  wonderful  jurisprudence.  The  researches 
of  modern  juridical  scholars  have  exposed  the  falsity  of 
much  that  has  been  written  by  English  authors,  such  as 
Blackstone  and  Coke,  with  respect  to  the  origin  of  their 
law,  and  have  demonstrated  the  existence  of  the  closest 
relations  between  the  Roman  jurisprudence  and  the  early 
English  common  law.  These  relations  with  the  growing 
common  law  were  disturbed,  and  finally  broken,  from 
political   motives  and  considerations;  but  with  the  equity 


3  ORKIIN  OF  EQUITY  JURISPRUDENCE.  §  3"- 

jurisprudence  they  became,  for  that  very  reason,  even 
more  intimate,  and  have  so  continued  until  the  present 
day.^ 

§  3.  In  the  earliest  period  of  the  Roman  law  of  which 
there  is  any  certain  trace  remaining,  and  thenceforward 
for  a  considerable  time  after  the  epoch  of  the  legislation 
known  as  the  Twelve  Tables,  there  were  five  actions  {Icgis 
actwnes)  for  the  enforcement  of  all  civil  rights.  Nothing 
could  exceed  the  arbitrariness  and  formalism  of  these 
judicial  proceedings.  Absolute  accuracy  was  required  in 
complying  with  the  established  phrases  and  acts;  any 
omission  or  mistake  of  a  word  or  a  movement  was  fatal. 
Gains,  who  wrote  long  after  they  were  abolished,  says  of 
them:  ''  But  all  these  actions  of  the  law  fell  gradually 
into  great  discredit,  because  the  over-subtlety  of  the  an- 
cient jurists  made  the  slightest  error  fatal.  "^  These  ac- 
tions finally  became  obsolete  and  disappeared,  except  one 
of  them,  which  under  a  modified  form  was  retained  for 
certain  very  special  cases  until  a  late  period  of  the  empire. 
The  analogy  between  them  anc"  the  old  "  real  actions  "  of 
the  English  common  law  is  striking  and  complete.  Their 
place,  in  all  ordinary  controversies,  was  sujoplied  by  a 
species  of  judicial  proceedings  much  more  simple  and 
natural,  to  which  the  generic  name  '*  formula  "  was 
given.^ 

§  2,  1  See  Bracton  and  his  relations  with  the  Roman  Law,  by  C.  Giiter- 
bock;  translated  by  Brinton  Coxe. 

§  3,  I  Institutes,  b.  iv.,  §  30. 

§  3,  2  As  to  "  formulas,"  see  Gaius's  Institutes,  b.  iv.,  §§  30-52;  Poste's  ed.  cf 
Gaius,  pp.  423-441;  Sandar's  Institutes  of  Justinian,  pp.  63-67.  It  should 
be  remembered  that  the  formula  was  drawn  up  by  or  under  the  direction  of 
the  magistrate.  I  add,  as  an  illustration,  one  of  the  most  simple  kinds  of 
formulas,  as  given  by  Gaius,  with  a  brief  explanation  of  its  various  parts.  It 
is  a  simple  action  to  recover  the  price  of  a  thing  sold.  "Judex  esto,  Quod 
Aulus  Agerius  Nu7nerio  Negidio  hominem  vendidit,  si  paret  Numerium  Negi- 
dium  Attlo  Agerio  sestertium  X  millia  dare  oportere,  judex  Numerium 
Negidium  Aulo  Agerio  sestertium  X  millia  condemnato,  si  non  paret,  absol- 
vito. 

The  judex  csto,  "  let  there  be  a  judex,"  is  merely  the  order  for  the  appoint- 
ment of  a  judex.     The  formula  consists  of  three  distinct  parts.     From  quod 


§    4  EQUITY   JURISPRUDENCE,  4 

§  4.  These  formulas  were  the  regular  steps  or  proc- 
esses in  a  cause  prior  to  tlie  trial,  reduced  to  writing, 
but  always  carefully  regulated  by  fixed  rules,  and  con- 
ducted in  accordance  with  prescribed  forms.  The  par- 
ties appeared  before  the  magistrate,  and  the  formula  was 
prepared  by  him,  or  under  his  direction.  It  contained, 
as  the  most  important  elements,  what  we  would  call  the 
*'  pleadings,"  namely,  a  statement  of  the  plaintiff's  cause 
of  action,  bearing  different  names  in  different  actions, 
which  was  expressed  in  certain  technical  language,  vary- 
ing with  the  nature  of  the  action,  of  the  claim,  and  of  the 


to  vendidit  is  the  demonstratio,  from  si  paret  to  dare  oportere  is?  the  intentio; 
and  from  judex  to  the  end  is  the  condemnatio.  The  formula  ordinarily  con- 
tained only  these  three  parts. 

The  demonstratio  is  the  general  statement  of  facts  which  are  the  ground 
of  plaintiffs  claim  to  recover.  As  in  this  case  Aulus  Agerius,  the  plaintiff 
says  "  that  Aulus  Agerius  sold  a  slave  to  Numerius  Negidius."  The  demon- 
stratio varied,  of  course,  in  each  particular  case.  The  intentio  is  the  most 
important  part.  It  is  the  precise  statement  of  the  legal  demand  made  by  the 
plaintiff;  it  presents  and  embodies  the  exact  question  of  law  involved  in 
the  case,  and  depending  upon  the  facts  as  they  shall  be  established  one  way 
or  the  other.  It  must,  therefore,  exactly  meet  the  law  which  would  govern 
the  facts  alleged  by  the  plaintiff,  if  true.  Whether  in  this  case  the  plaintiff 
sold  the  slave  to  the  defendant  at  the  price  alleged,  and  whether  the  debt 
is  still  owing,  is  the  matter  to  be  decided  by  the  judex.  If  it  appear  to  the 
judex  {si  paret)  that  Numerius  Negidius  ouglit  to  pay  to  Aulus  Agerius 
ten  thousand  sesterces,  then  the  judex  is  to  pronounce  judgment  against 
him ;  if  it  does  not  so  appear  to  the  judge,  then  he  is  to  acquit.  The  con- 
demnatio is  the  direction  to  the  judex  to  condemn  or  to  acquit,  according  to 
the  true  circumstances  of  the  case. 

The  condemnatio  was  always  pecuniary,  a  direction  to  condemn  the  de- 
fendant to  pay  a  sum  of  money.  The  various  modifications  in  the  actions  by 
the  prsrtors  largely  consisted  in  their  adding  other  kinds  of  specific  relij^fs, 
which  might  be  awarded.  Thus  in  three  actions,  to  partition  a  family  in- 
heritance, to  divide  the  property  of  partners,  and  to  settle  boundaries,  the 
judex  was  directed  "to  adjudicate"  the  thing,  in  the  sense  of  distributing 
it  among  tlic  litigants  entitled  to  portions.  In  these  actions  there  was  a 
fourth  part  of  tlie  formula  containing  such  direction,  and  called  the  adjudi- 
catio.  Where  the  action  was  brought  to  recover  a  thing,  and  not  a  sum  of 
money,  the  condemnatio  sometimes  left  the  sum  to  be  paid  by  defendant  to  be 
fixed  by  the  judex,  at  his  discretion ;  and  sometimes  inserted  the  words 
nisi  restiiuat,  ho  that  the  defendant  was  only  ordered  to  pay  the  sum  of 
money,  if  he  refused  or  neglected  fo  restore  or  deliver  up  tiie  thing  to  the 
plaintiff.     See  Pomeroy's  fnfrodiiction  to  Muiii(ij)al  Law,  §§   183,  184. 


5  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  4 

relief  asked;  the  defendant's  answer,  also  varying  accord- 
ing to  the  action  and  the  defense ;  it  also  contained  the 
appointment  of  the  lay  person  who  was  to  try  the  issue 
and  render  judgment,  the  judex  or  the  arbiter;  the  rule  of 
law  which  was  to  govern  him,  not  stated,  however,  as  an 
abstract  proposition,  but  simply  as  a  direction,  in  short 
and  technical  terms,  to  render  such  a  judgment  if  the 
plaintiff  proved  the  case  stated  in  the  pleading,  otherwise 
to  dismiss  the  suit.  The  whole  formula  was  contained  in 
a  few  brief  sentences,  and  the  technical  words  or  phrases 
used  indicated  clearly  the  nature  of  the  action,  the  relief 
to  be  given,  the  defenses  to  be  admitted,  and  the  legal 
rule  to  be  followed.  The  contrast  between  its  brevity, 
simplicity,  and  at  the  same  time  comprehensiveness,  and 
the  repetitions,  redundancy,  verbiage,  and  obscurity  of 
the  later  common-law  special  pleadings,  is  very  striking 
and  instructive.  The  formula  being  thus  prepared  before 
the  magistrate  (the  cause  being  at  that  stage  in  jure),  the 
parties  then  went  before  the  *'  judex,"  or  "  arbiter,"  and 
proceeded  with  the  trial  (the  cause  being  then  in  jiidicio). 
He  heard  the  testimony  and  the  arguments  of  counsel, 
and  rendered  the  judgment;  but  the  cause  was  thereupon 
taken  before  the  magistrate  a  second  time,  who  enforced 
the  judgment  and  also  possessed  a  revisory  authority  over 
the  decision  of  the  judex.  It  is  plain  that  the  functions 
of  the  "  judex  "  corresponded  closely  with  those  of  our 
jury;  and  even  his  power  in  rendering  the  judgment  was 
not  essentially  different  from  that  of  the  jury  in  giving 
their  verdict,  since  the  judgment  itself,  which  ought  to  be 
rendered,  was  prescribed  in  the  direction  of  the  formula, 
and  the  judex  had  no  more  authority  than  the  jury  has  in 
determining  the  rule  of  law  which  should  govern  the  rights 
of  the  parties.^  The  functions  of  the  magistrates  were 
more  complex. 

1  Of  course  it  is  not  claimed  by  me  that  the  "  judex,"  or  '•  arbiter,"  was 
identical  with  our  jury,  nor  that  he  was  the  historical  source  of  the  jury.  All 
that  I  assert  is,  that  there  are  striking  analogies  between  the  two;   and  of 


§    5  EQUITY   JURISPRUDENCE.  6 

§  5.  The  most  important  magistrates,  after  the  devel- 
"Opment  of  the  Roman  law  had  fairly  commenced,  and 
•down  to  the  period  under  the  empire  at  which  the  ad- 
ministration was  entirely  remodeled,  were  the  pra'tors 
Urban  and  Peregrine  {Prcetor  Urhanus,  Prcetor  Pere- 
grinus).  The  praetor,  in  the  totality  of  his  juridical  func- 
tions, corresponded  both  to  the  English  common-law  courts 
and  the  Chancellor.  As  the  English  courts,  by  means  of 
their  legislative  function,  have  built  ujd  the  greater  part  of 
the  law  of  England,  so  did  the  pra?tors,  by  the  exercise  of  the 
same  function,  construct  the  largest  jDart  of  the  Roman 
jurisprudence,  which  was  afterwards  put  into  a  scientific 
shape  by  the  great  jurists  of  the  empire,  and  was  finally 
codified  in  the  Pandects  of  Justinian.  This  legislative 
work  of  theirs  was  done  in  a  manner  and  form  so  out- 
wardly different  from  that  of  the  English  judges,  that 
many  writers,  and  especially  the  German  commentators, 
who  seem  utterly  unable  to  comprehend  in  its  fullness  the 
legislative  attributes,  both  of  the  English  and  the  Roman 
judicial  magistrates,  have  failed  to  perceive  the  identity. 
The  identity,  however,  exists,  and  the  differences  are 
wholly  formal.  The  legislative  work  of  the  English  and 
American  courts  has  been  and  still  is  done  in  the  judg- 
ments and  opinions  rendered  upon  the  decision  of  cases 
after  the  events  have  happened  which  called  for  such 
official  utterances.  The  same  work  of  the  Roman  praetors 
was  done  in  the  edicts  (edict a)  which  they  issued  upon 
taking  office,  and  which  in  process  of  time  became  one 
continuous  body  of  law,  each  magistrate  taking  what  had 
been  left  by  his  predecessors,  and  altering,  amending, 
or  adding  to  the  same,  as  the  needs  of  an  advancing  civil- 
ization required.     The   form   of  this   edict  was   peculiar. 

UiIh  no  iinprcjudicrd  HtiKlcnl  of  jurispnidrnoo  can,  for  a  momont,  doubt.  I 
niukf  tliis  rcriiiirk  Ix'faiisc  tlic  toaoliinf^a  of  soiiio  Gorman  profcagora  indicate 
an  cntirt!  incapacity  on  tlicir  part  to  understand  tlio  development  of  the  Roman 
jurisf)rudcnce  under  the  li^ht  tlirown  upon  it  by  the  liistorical  progress  of  the 
finglinh  law.     Sve  Poroeroy's  Introduction  to  Municipal  Law,  §§  315,  316,  317. 


7  OIlirjIN   OF  EQITITY   JURISPRUDENCE.  §  6 

Instead  of  laying  down  abstract  propositions  defining  pri- 
mary rights  and  duties,  or  publishing  formal  commands 
similar  to  modern  statutes,  the  magistrates  announced 
that  under  certain  specified  circumstances  a  remedy 
would  be  granted  by  means  of  a  designated  action,  where 
the  prior  law  gave  no  such  remedy;  or  that  under  certain 
circumstances,  if  a  person  attempted  to  enforce  a  rule  of 
the  prior  law  by  action,  a  defense  which  had  not  existed 
before  would  be  admitted  and  sustained. 

§  6.  The  jurisdiction  of  the  prfetors,  which  was  exer- 
cised by  means  of  formulas,  and  in  which  a  judex  or 
other  lay  person  was  called  in  to  decide  the  issues  of  fact, 
was  called  his  **  ordinary  "  jurisdiction.  In  the  later 
periods  of  the  republic,  there  arose  another  jurisdiction 
termed  the  *'  extraordinary  "  (extra  ordinem).  In  causes 
coming  under  this  jurisdiction,  the  magistrate  himself 
decided  both  the  law  and  the  facts,  without  the  interven- 
tion of  any  judex,  and  unhampered  by  any  technical  re- 
quirements as  to  the  j^roper  formula  or  kind  of  action. 
The  plaintiff  alleged  the  facts  making  out  his  cause  of 
action,  the  defendant  set  forth  his  defense,  and  the  magis- 
trate decided.  By  this  method  remedies  could  be  given 
which  were  not  pro\'ided  for  in  any  of  the  existing  forms 
of  action,  and  equitable  notions  could  be  more  freely  ap- 
plied, and  thus  incorporated  into  the  growing  mass  of  the 
national  jurisprudence.  In  this  extraordinary  jurisdic- 
tion we  can  plainly  see  the  prototjqDe  of  English  chancery 
procedure;  while  the  ordinary  methods  by  formulas  were 
as  certainly  the  analogues  of  the  common-law  forms  of 
action.  The  extraordinary  jurisdiction  continued  for  a 
long  time  side  by  side  with  the  ordinary,  growing  in  ex- 
tent and  importance  until  it  became  the  only  mode  in  com- 
mon use.  By  a  constitution  of  the  Emperor  Diocletian 
(A.  D.  294),  all  causes  in  the  provinces  were  required  to  be 
tried  in  this  manner;  and  finally  the  same  rule  was  made 
universal  throughout  the  empire.  Here,  again,  we  may 
see  another  of  the  repetitions  which  history  exhibits  under 


§    7  EQUITY   JURISPRUDENCE.  8 

the  operation  of  like  social  forces.  This  event  in  the  Roman 
jurisprudence  was  in  all  its  essential  elements  similar  to 
the  recent  legislation  of  Great  Britain  and  of  tlie  Ameri- 
can states,  by  which  all  distinction  between  suits  in  equity 
and  actions  at  law  has  been  abolished,  and  the  two  jurisdic- 
tions have  been  combined  in  the  same  proceeding  and  con- 
ferred upon  the  same  tribunal. 

§  7.  As  has  been  already  stated,  the  legislative  work  of 
the  prcetors  was  accomplished  by  the  introduction  of  new 
actions,  whereby  a  right  could  be  enforced,  which  the  law 
prior  to  that  time  did  not  recognize,  or  which  it  perhaps 
absolutely  denied.  The  number  of  particular  actions  thus 
invented  or  allowed  by  the  prsetorian  law  was  large,  and 
they  have  been  separated  by  the  commentators  into  many 
classes,  according  to  various  lines  of  division.  It  will  be 
sufficient  for  my  purposes  of  description  to  arrange  them 
in  three  groups.  The  early  law  of  Rome  which  existed 
prior  to  the  time  when  the  praetorian  development  fairly 
commenced,  and  the  external  form  or  shell  of  which  was 
preserved  through  a  large  part  of  that  development,—  the 
jus  civile,—  was  exceedingly  stern,  rigid,  formal,  and  arbi- 
traiy,  paying  little  attention  to  abstract  right  and  justice, 
reflecting  in  every  part  the  character  and  customs  of  the 
primitive  Romans.  It  admitted  certain  prescribed  actions 
and  defenses  appropriate  for  certain  facts  and  circum- 
stances, but  for  other  facts  and  circumstances  differing 
from  those  to  which  the  existing  actions  or  defenses  were 
exactly  adapted,  it  furnished  no  remedy.  In  their  work  of 
buikling  up  a  broader  jurisprudence  upon  the  narrow  basis 
of  this  ancient  jus  civile,  the  praetors,  in  the  first  place^ 
introduced  a  class  of  actions  which  were  substantially  the 
same  as  tliose  provided  by  the  existing  law,  unaltered  in 
any  of  their  essential  features,  but  enlarged  in  tlie  scope 
of  their  operation.  In  other  words,  the  magistrates  em- 
ployed ilic  ()l(h('S<;iblisli('<l  ncliojis  of  tlio  jus  civile,  with- 
out changing  the  technical  words,  ])lirases,  and  parts  of 
their  forfunln:,  but  extended  their  application  to  new  cases, 


9  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  7 

facts,  and  circumstances.  These  new  facts  and  circum- 
stances did  not  differ  widely  from  the  subject-matter  to 
which  the  actions  had  been  originally  adapted  by  the  former 
law;  they  necessarily  came  within  the  same  general  prin- 
cijole  which  had  furnished  the  rule  of  decision  before  the 
scope  of  the  actions  was  thus  enlarged.  In  a  similar  man- 
ner, the  English  law  courts  have,  in  later  times,  used  the 
ancient  actions  of  debt,  covenant,  and  trespass,  without 
altering  their  technical  forms,  for  the  decision  of  issues 
which  had  not  arisen  in  the  earlier  periods  of  the  common 
law.  The  second  of  the  three  groups  or  classes  contained 
a  large  number  of  new  actions  first  allowed  by  the  proctors, 
which,  though  not  substantially  the  same,  were  analogous 
or  similar  in  their  nature  and  objects  to  those  which  ex- 
isted in  the  ancient  jus  civile.  The  formulas  of  these  new 
actions  bore  a  general  resemblance  to  those  of  the  old,  and 
were  indeed  patterned  after  them,  but  still  differed  from 
them  in  various  important  particulars.  Necessary  changes 
were  made  in  the  statement  of  the  plaintiff's  cause  of  action, 
of  the  defendant's  defense,  or  of  the  direction  for  the  judg- 
ment addressed  to  the  judex  or  the  arbiter.  New  cases  were 
thus  provided  for;  new  rules  of  law  were  introduced,  old 
ones  were  modified  or  repealed.  The  number  of  particular 
actions  embraced  in  this  class  was  large,  and  in  the  course 
of  the  legal  development  from  age  to  age.  the  i:>rastors  were 
enabled  by  their  means  to  soften  the  rigor  of  the  old  law, 
to  remove  its  arbitrariness,  and  to  mold  its  doctrines  into 
a  nearer  conformity  with  the  principles  of  right  and  justice. 
The  actions  comprised  in  this  class,  and  the  service  which 
they  rendered  in  improving  the  Roman  law,  were  strictly 
analogous  to  the  actions  of  ejectment,  case,  trover,  and 
especially  assumpsit,  and  the  work  which  they  have  per- 
formed in  expanding  and  ameliorating  the  common  law. 
The  tJdrd  class  consists  of  the  new  actions  introduced  from 
time  to  time,  which  were  wholly  different,  both  in  principle 
and  form,  from  any  that  had  existed  under  the  old  law. 
In  their  invention  the  magistrate  dissevered  all  connection 


§    8  EQUITY   JURISPRUDENCE.  10 

with  the  ancient  methods,  and  by  their  use,  more  than  by 
any  other  means,  he  constructed  a  jurisprudence  founded 
upon  and  interpenetrated  by  equitable  doctrines  which 
finally  supplanted  the  old  jus  civile,  and  became  the  Roman 
law  as  it  was  scientifically  arranged  by  the  great  jurists  of 
the  empire,  and  is  known  to  us  as  the  Pandects  and  Insti- 
tutes of  Justinian,^ 

§  8,  In  their  work  of  improving  the  primitive  jus  civile, 
the  magistrates  who  issued  edicts  (who  possessed  the  jus 
edicendi),  and  the  jurisconsults  who  furnished  authorita- 
tive opinions  (responsa)  to  aid  the  praetors  (those  who 
possessed  the  jus  respondendi),^  obtained  their  material 
from  two  sources,  namely:  At  first,  from  what  they. termed 
the  jus  gentium,  the  law  of  nations,  meaning  thereby  those 
rules  of  law  which  they  found  existing  alike  in  the  legal 
systems  of  all  the  peoples  with  which  Rome  came  into  con- 
tact, and  which  they  conceived  to  have  a  certain  universal 
sanction  arising  from  principles  common  to  human  nature; 
and  at  a  later  day,  from  the  Stoic  theory  of  morality,  which 
they  called  lex  naturce,  the  law  of  nature.  The  doctrines 
of  this  jus  gentium  and  of  this  lex  naturce  were  often  iden- 
tical, and  hence  arose  the  conception,  generally  prevalent 

§  7,  1  Ponieroy's  Introduction  to  Municipal  Law,  §§  185-192;  Sandars's  Insti- 
tutes of  Justinian,  pp.  07-71;  Posters  Institutes  of  Gaius,  pp.  368,  400-40<; ; 
Phillimores  I'rivate  Law  among  the  Romans,  pp.  150^159. 

§  8,  1  I  have  not,  in  the  foregoing  paragraphs,  discussed  the  peculiar  func- 
tions of  the  jurisconsults,  and  the  effect  of  tlieir  "  responses,"  because  it  was  my 
object,  not  to  describe  the  Roman  law  at  large,  but  simply  to  point  out  the 
analogies  between  its  modes  of  development,  and  those  of  our  own  law.  I  will, 
however,  state  the  conclusion  reached  by  the  a1)lest  modern  scholarship: 
Tliat  although  the  responses  of  the  jurisconsults  always  had  a  high  authorily, 
and  although  during  a  long  period  of  time  the  magistrates  were  bound  under 
certain  limitations  to  adopt  their  oflicial  opinions  as  precedents,  yet  the  magis- 
trate alone  possessed  the  creative  function  of  legislaluiij,  of  making  la\c. 
He  went  to  the  opinions  of  the  official  jurisconsults  for  his  material,  for  the 
HOurccH  of  his  legislaliim;  but  those  opinions  did  not  obtain  the  compulsive 
<'fTicacy  of  lair,  until  they  had  been  adopted  by  the  judicial  magistrate,  and 
reissued  by  him  through  the  means  of  his  edict  or  his  decisions.  The  theory 
long  niaintiiimd,  tliat  the  jurisconsults  possessed  the  power  of  Icgislatinfj, 
and  that  they  created  the  Roman  jurisprudence,  has  been  abandoned.  See 
Ponieroy's  Introduction  to  Municipal  Law,   S8   .'}ir)-.317. 


n  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  8 

among  the  .iuridical  writers  of  the  empire,  that  the  "  natiirnl 
law  "  (lex  natura)  and  the  ''  law  of  nations  "  {jus  gen- 
tium) were  one  and  the  same;  or  in  other  words,  that  the 
doctrines  which  were  found  common  to  all  national  systems 
were  dictated  by  and  a  part  of  this  natural  law.  The  par- 
ticular rules  of  the  Roman  jurisprudence  derived  from  this 
morality,  called  the  law  of  nature,  were  termed  "■  cequitas," 
from  cpqimm,  because  they  were  supposed  to  be  impartial 
in  their  operation,  applying  to  all  persons  alike.  The  lex 
naturcc  was  assumed  to  be  the  governing  force  of  the 
world,  and  was  regarded  by  the  magistrates  and  jurists 
as  having  •  an  absolute  authority.  They  felt  themselves, 
therefore,  under  an  imperative  obligation  to  bring  the  juris- 
prudence into  harmony  with  this  all-pervading  morality, 
and  to  allow  such  actions  and  make  such  decisions  that 
no  moral  rule  should  be  violated.  Whenever  an  adherence 
to  the  old  jus  civile  would  do  a  moral  wrong,  and  jDroduce 
a  result  inequitable  {incBquum) ,  the  praetor,  conforming  his 
edict  or  his  decision  to  the  law  of  nature,  provided  a  remedy 
by  means  of  an  appropriate  action  or  defense.  Gradually 
the  cases,  as  well  as  the  modes  in  which  he  would  thus  in- 
terfere, grew  more  and  more  common  and  certain,  and  thus 
a  body  of  moral  principles  was  introduced  into  the  Roman 
law,  which  constituted  equity  (cequifas).^  This  resulting 
equity  was  not  a  separate  department ;  it  penetrated  the  en- 
tire jurisprudence,  displacing  what  of  the  ancient  s^'stem 
was  arbitrary  and  unjust,  and  bringing  the  whole  into  an 
accordance  with  the  prevailing  notions  of  morality.  In  its 
original  sense,  ccquitas,  cequmn,  conveyed  the  conception 
of  universality,  and  therefore  of  impartiality,  a  having 
regard  for  the  interests  of  all  whose  interests  ought  to  be 
regarded,  as  contrasted  with  the  having  an  exclusive  or 
partial  regard  for  the  interests  of  some,  w^hich  was  the 
essential  character  of  the  old  jus  civile.    At  a  later  period, 

2  See   Sandars's   Institutes   of   Justinian,   pp.    13,    14;    Phillimore's   Private 
Law  among  the  Romans,  pp.  21.  22;  2  Austin  oh  Jurisprudence,  pp.  240-267. 


§§  9,  10  EQUITY    JURISPRUDENCE.  12" 

and  especially  after  the  influence  of  Christianity  had  been 
felt,  the  signification  of  ccquiias  became  enlarged,  and  was 
made  to  embrace  our  modern  conceptions  of  right,  duty,  jus- 
tice, and  morality. 

§  9.  There  are  certainly  many  striking  analogies  be- 
tween the  growth  of  equity  in  the  Eoman  and  in  the  Eng- 
lish law:  the  same  causes  operated  to  make  it  necessary, 
the  same  methods  were  up  to  a  certain  point  pursued,  and 
in  principle  the  same  results  were  reached.  The  differ- 
ences, however,  are  no  less  remarkable.  No  separate  tri- 
bunal or  department  was  made  necessary  in  the  Roman 
jurisprudence,  because  the  ordinary  magistrates-  were  will- 
ing to  do  what  the  early  English  common-law  judges  ut- 
terly refused  to  perform;  that  is,  to  promote  and  control 
the  entire  legal  development  as  the  needs  of  an  advancing 
civilization  demanded.  AVhile  these  common-law  judges 
resisted  every  innovation  upon  their  established  forms,  and 
shut  up  every  way  for  the  legal  growth,  the  Roman  magis- 
trates were  the  leaders  in  the  work  of  reform,  and  con- 
stantly anticipated  the  wants  of  the  community.  The  Eng- 
lish judges  made  a  new  court  and  a  separate  department 
indispensable;  the  Roman  praetors  accomplished  every  re- 
form by  means  of  their  own  jurisdiction,  and  preserved  in 
the  jurisprudence  a  unity  and  homogeneity  which  the  Eng- 
lish and  American  law  lacks,  and  which  it  can  perhaps 
never  acquire.  Both  these  resemblances  and  these  contrasts- 
are  exhibited  in  the  following  paragraphs,  which  describe 
the  introduction  of  equity  into  the  English  system  of 
jurisprudence. 

§  10.  Origin  of  Equity  in  the  English  Law  —  Primitive 
Condition  of  the  Law  and  the  Courts. —  During  the  Anglo- 
Saxon  and  early  Norman  periods,  the  law  of  England  was, 
like  that  of  all  peoples  in  the  first  stages  of  their  develop- 
ment, to  a  large  extent  consuetudinary.  The  primitive 
Saxon  Codes,  except  so  far  as  they  re-enacted  certain  pre- 
cepts taken  from  the  Holy  Scriptures,  or  borrowed  a  few 
provisions   from   the   then    known   remains   of  the    Roman 


13  ORIGIN  OF  EQUITY  JURISPRUDENCE,  §  11 

law,  were  chiefly  redactions  of  prior  existing  customs.  The 
Saxon  local  folk  courts,  and  even  the  supreme  tribunal 
of  the  Witana-gemote,  not  being  composed  of  professional 
judges,  were  certainly  guided  in  their  decisions  of  particu- 
lar controversies  by  customs  which,  when  established  and 
certain,  were  considered  as  having  the  same  obligatory  char- 
acter which  we  give  to  positive  law.^ 

§  11.  In  the  reign  of  William  the  Conqueror  the  local 
folk  courts  of  the  Saxon  polity  were  left  in  existence;  and 
they,  together  with  the  manor  courts  of  the  Norman  barons, 
continued  to  be  the  tribunals  of  first  resort  (to  use  a 
modern  term)  for  the  trial  of  ordinary  disputes,  through 
several  succeeding  reigns ;  but  they  gradually  lost  their 
functions  and  sunk  into  disuse  as  the  more  strictly  pro- 
fessional tribunals  grew  in  importance  and  extended  their 
jurisdiction,  until  they  were  finally  superseded  by  the  itin- 
erant justices  appointed  by  the  crown  or  by  the  King's 
Court  as  representative  of  the  crown.  William,  however, 
made  some  most  important  innovations.  In  the  Curia 
Regis,  King's  Court,  which  then,  and  for  a  considerable 
time  afterwards,  was  a  body  composed  of  barons  and  high 
ecclesiastics  with  legislative,  judicial,  and  administrative 
functions  as  yet  unseparated,  he  appointed  a  Chief  Justici- 
ary to  preside  over  the  hearing  of  suits.  This  creation  of  a 
permanent  judicial  officer  was  the  germ  of  the  professional 
common-law  tribunals  having  a  supreme  jurisdiction 
throughout  England,  which  subsequently  became  estab- 
lished as  a  part  of  the  government,  distinct  from  the  legis- 
lative and  the  executive.  He  also  appointed,  from  time  to 
time,  as  occasion  required,  itinerant  justices  to  travel  about 
and  hold  "  pleas  "  or  preside  over  the  Shire  Courts  in  the 
different  counties.  These  officers  were  temporary,  and 
ceased  when  their  special  duties  had  been  performed,  but 
they  were  the  beginning  of  a  judicial  system  which  still  pre- 

1  As    to    the    account    in    following    paragraphs,    see    1    Spence's    Eq.    Jur., 
pp.  87-128. 


§  12  EQUITY    JURISPRUDENCE.  14 

vails  in  England,  and  which  has  been  adopted  in  many  of 
the  American  states.  ^ 

§  12.  The  organization  thus  made  or  permitted  by  Wil- 
liam continued  without  any  substantial  change,  but  yet  with 
gradual  modifications  and  progressive  improvements, 
through  several  of  the  succeeding  reigns.  The  business  of 
the  King's  Court  steadily  and  raj^idly  increased;  under 
Henry  II.  its  judicial  functions  were  finally  separated  from 
the  legislative,  and  from  that  time  until  its  abolition  in 
1874,  it  has  continued  to  be  the  highest  common-law  tribu- 
nal of  original  jurisdiction,  under  the  name  of  the  Court 
of  King's  Bench.  In  the  reign  of  Henry  I.  itinerant  justices 
were  sometimes  appointed,  as  by  William  the  Conqueror, 
and  under  Henry  II.  their  office  and  functions  were  made 
permanent;  but  during  the  reign  of  Edward  III.  their 
places  were  filled  and  their  duties  performed  by  the  jus- 
tices of  the  Superior  Courts,  acting  under  special  commis- 
sions empowering  them  to  hold  courts  of  oyer  and 
terminer  and  of  nisi  prius.  These  itinerant  justices  — 
*'  justices  in  eyre  "—  went  from  county  to  county,  holding 
pleas  civil  and  criminal,  and  as  a  consequence  the  old  local 
courts  of  the  shire,  hundred,  and  manor  were  abandoned  as 
means  of  determining  controversies  between  litigant  par- 
ties. The  King's  Court,  even  after  it  became  a  purely  judi- 
cial body,  was  attached  to  the  person  of  the  King,  and  fol- 
lowed him  in  his  journeys  and  residences  in  different  parts 
of  the  realm.  The  great  inconvenience  to  suitors  resulting 
from  this  transitory  quality  of  the  court  was  remedied  by 
Magna  Cliarta,  which  provided  in  one  of  its  articles  that 
*'  Common  Pleas  shall  no  longer  follow  the  King."  In  obe- 
dience to  ill  is  mandate  of  tlie  Charter,  justices  were  ap- 
pointed to  hoar  controversies  concerning  lands,  and  other 
matters  purely  civil,-  known  as  "  common  "  pleas,—  and 
the  new  tribunal  composed  of  these  judges  was  fixed  at 
Westminster.  Thus  commenced  the  Court  of  Common 
Bencli.  The  third  superior  common-law  tribunal  acqnii'od 
its  powers  in  a  much  more  irregular  manner.    In  arrang- 


15  ORIGIN  OF  KQUITY  JURISPRUDENCE.  §  13 

ing  his  government,  William  the  Conqueror  had  estab- 
lished a  board  of  high  officials  to  superintend  and  manage 
the  royal  revenues,  and  a  number  of  barons,  with  the  chief 
justiciary,  were  required  to  attend  the  sittings  of  this 
board,  in  order  to  decide  the  legal  questions  which  might 
arise.  These  judicial  assessors,  in  the  course  of  time,  be- 
came the  Court  of  Exchequer,  a  tribunal  whose  authority 
originally  extended  only  to  the  decision  of  causes  directly 
connected  with  the  revenue,  but  its  jurisdiction  was  subse- 
quently enlarged,  through  the  use  of  legal  fictions,  and 
thus  made,  to  a  certain  extent,  concurrent  with  that  of  the 
two  other  Superior  Law  Courts.  The  office  of  Chancellor 
was  very  ancient.  It  had  existed  before  the  conquest,  and 
was  continued  by  William.  Under  his  successors,  the 
Chancellor  soon  became  the  most  important  functionary 
of  the  King's  government,  the  personal  adviser  and  repre- 
sentative of  the  crown,  but,  in  the  very  earliest  times, 
without,  as  it  seems,  any  purely  judicial  powers  and  duties 
annexed  to  the  position.  How  these  functions  were  ac- 
quired, it  is  the  main  purpose  of  this  historical  sketch  to 
describe.  The  three  superior  law  courts  whose  origin  has 
thus  been  stated  have  remained,  with  some  statutory  modi- 
fication, through  the  succeeding  centuries,  until,  by  the 
Judicature  Act  of  1873,  which  went  into  operation  Novem- 
ber 2,  1875,  they  and  the  Court  of  Chancery,  and  certain 
other  courts,  were  abolished  as  distinct  tribunals,  and  were 
consolidated  into  one  ''  Supreme  Court  of  Judicature."^ 
§  13.  The  local  folk  courts  left  in  existence  at  the  con- 
quest, and  even  the  itinerant  justices  and  the  central  King^s 
Court,  for  a  while  continued  to  administer  a  law  which 

1  36  &  37  Vict.,  chap.  66,  §  3 :  "  From  and  after  the  time  appointed  for  the 
commencement  of  this  act,  the  several  courts  hereinafter  mentioned  (that  is 
to  say),  the  High  Court  of  Chancery  of  England,  the  Court  of  Queen's  Bench, 
the  Court  of  Common  Pleas  at  Westminster,  the  Court  of  Exchequer,  the 
High  Court  of  Admiralty,  the  Court  of  Probate,  the  Court  for  Divorce  and 
Matrimonial  Causes,  and  the  London  Court  of  Bankruptcy,  shall  be  united 
and  consolidated  together,  and  shall  constitute,  under  and  subject  to  the 
provisions  of  this  Act,  one  Supreme  Court  of  Judicature  in  England." 


§  14  EQUITY    JURISPRUDENCE.  l6 

was  largely  customary.  The  progress  of  society,  the  in- 
crease in  importance  of  property  rights,  the  artificial 
system  which  we  call  feudalism,  with  its  mass  of  arbitrary 
rules  and  usages,  all  demanded  and  rapidly  produced  a 
more  complete,  certain,  and  authoritative  jurisprudence 
for  the  whole  realm  than  the  existing  popular  customs, 
however  ancient  and  widely  observed.  This  work  of  build- 
ing up  a  positive  jurisprudence  upon  the  foundation  of 
the  Saxon  customs  and  feudal  usages,  this  initial  activity 
in  creating  the  common  law  of  England,  was  done^,  not 
by  parliamentary  legislation  nor  by  royal  decrees,  but  by 
the  justices  in  their  decisions  of  civil  and  crmiinal  causes. 
The  law  which  had  been  chiefly  customary  and  therefore 
unwritten,  preserved  by  tradition,  lex  non  scripta,  was 
changed  in  its  f  omi  by  being  embodied  in  a  series  of  judicial 
precedents  preserved  in  the  records  of  the  courts,  or  pub- 
lished in  the  books  of  reports,  and  thus  it  became,  so  far 
as  these  precedents  expressed  its  principles  and  rules,  a 
written  law,  lex  scripta} 

§  14.  Early  Influences  of  the  Roman  Law. —  In  this 
work  of  constructing  a  jurisprudence,  the  early  common- 
law  judges,  as  well  as  the  Chancellor  at  a  later  day,  drew 
largely  from  their  own  knowledge  of  the  Eoman  law.  The 
evidence,  both  internal  and  historical,  is  conclusive  that 
the  common  law  of  England,  in  the  earliest  formative 
period,  was  much  indebted  to  that  Roman  jurisprudence 
which  enters  so  largely  into  the  judicial  systems  of  all  the 
western  nations  of  the  European  continent.  Besides  the 
proof  furaislied  by  the  law  itself,  several  important  facts 

1  ITie  division  of  '*  written  "  and  "  unwritten  ''  law  made  by  Blackstone, 
and  writers  who  have  copied  his  notions,  which  makes  the  "  written  "  identi- 
cal with  the  statutory,  and  describes  the  entire  portion  embodied  in  judicial 
decisions  as  "  unwritten,"  is  simply  absurd.  This  definition  is  another  in- 
stance of  Blackstone's  mistaking  tlie  meaning  of  Roman  law  terms.  The  lea) 
non  scripta  is  customary,  traditional,  preserved  in  the  popular  memory:  a 
law  c'xprc'HHod  in  judicial  records  or  in  statutes  is  written.  The  Roman 
prtrtorian  edicts  formed  a  part  of  the  lex  scripta  as  much  as  the  leges  or 
the  imperial   "  constitutions." 


17  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  14. 

connected  with  tlie  external  history  of  its  primitive  stages 
point  to  this  conclusion.  The  clergy,  who  possessed  all  the 
learning  of  the  times,  were  students  of  the  Roman  law.  The 
earliest  justices  of  the  common-law  courts,  as  well  as  the 
<3hancellors,  w^ere  generally  taken  from  the  higher  orders 
of  ecclesiastics;  and  on  all  occasions  where  it  was  necessary 
for  them  to  legislate  in  the  decision  of  particular  cases,  to 
create  new  rules  for  relations  hitherto  undetermined,  they 
naturally  had  recourse  to  the  code  with  which  they  were 
familiar,  borrowed  many  of  its  doctrines,  and  adopted  them 
as  the  ground  of  their  judgments.  Nor  was  a  knowledge 
of  the  Roman  law  confined  to  the  courts ;  its  study  became 
a  part  of  what  would  now  be  called  the  higher  education. 
When  the  spirit  of  free  inquiry  was  suddenly  awakened  at 
the  commencement  of  the  twelfth  century,  one  of  its  most 
remarkable  manifestations  was  shown  in  the  scientific  study 
of  the  Roman  law  which  began  at  the  University  of  Bologna 
in  1120,  and  soon  extended  over  western  Europe.  In  1143, 
Archbishop  Theobald,  who  had  himself  studied  at  Bologna, 
brought  a  distinguished  civilian,  Vacarius,  into  England, 
and  this  jurist  in  1149  established  a  school  of  the  Roman  law 
at  the  University  of  Oxford,  which  soon  rose  to  an  emi- 
nence second  only  to  those  of  Paris  and  of  Bologna.  King 
Stephen  afterwards  prohibited  Vacarius  from  public  teach- 
ing, but  this  act,  instead  of  stopping  the  study  in  England, 
produced  the  contrary  effect  of  stimulating  and  promoting 
it.  Bracton's  celebrated  work,  De  Legibus  et  Consuetu- 
dinibus  Angliae,  written  between  A.  D.  1256  and  1259,^ 
and  which  is  an  epitome  or  systematic  institute  of  the  com- 
mon law  as  it  then  existed,  exhibits  in  the  plainest  manner 
the  results  of  the  judicial  labor  and  scientific  study  which 
had  preceded  it.  A  considerable  portion  of  its  doctrines, 
and  even  of  the  terms  in  which  its  rules  are  stated,  is  taken 
directly  from  standard  treatises  of  the  day  upon  the  Roman 

1  Bracton    and    his    relations    with    the    Roman    law,    by    Carl    Giiterbock; 
translated  by  Brinton  Coxe,  p.  24. 

Vol.  I  — 2 


§  15  EQUITY   JURISPRUDENCE.  IS 

jurisprudence.  In  the  language  of  a  recent  writer:  ''As 
Eoman  legal  matters  obtained  reception,  although  the  writ- 
ten sources  of  the  Roman  law  were  not  at  all  received  as 
having  a  legislative  authority,  Bracton  properly  included 
such  Eoman  legal  matter  among  the  leges  et  consuetudines 
Anglicc."- 

§  15.  Had  it  not  been  for  several  powerful  causes,  partly 
growing  out  of  the  English  national  character,  or  rather, 
the  character  of  the  Norman  kings  and  barons  who  ruled 
over  England,  and  partly  arising  from  external  events  con- 
nected with  the  government  itself,  it  is  probable  that  this 
work  of  assimilation  and  of  building  up  the  common  law 
with  materials  taken  from  the  never-failing  quarries  of  the 
Roman  legislation,  would  have  continued  throughout  its 
entire  formative  jDeriod.  As  the  corpus  juris  civilis  con- 
tains the  results  of  the  labors  of  the  great  philosophic 
jurists  who  brought  the  jurisj^rudence  of  Rome  to  its  high- 
est point  of  excellence,  and  as  its  rules,,  so  far  as  they  are 
concerned  with  private  rights  and  relations,  are  based  upon 
principles  of  justice  and  equity,  it  is  also  certain  that  if 
this  work  of  assimilation  had  thus  gone  on,  the  connnon  law 
of  England  would  from  an  early  day  have  been  molded  into 
the  likeness  of  its  original.  Through  the  decisions  of  its 
own  courts  the  principles  of  justice  and  equity  would  every- 
where have  been  adopted,  and  would  have  appeared 
throughout  the  entire  structure.  All  this  would  have 
been  accomplished  in  the  ordinary  course  of  develop- 
ment, by  the  ordinaiy  common-law  tribunals,  without 
any  necessity  for  the  creation  of  a  separate  court  which 
should  be  charged  with  tlic  special  function  of  administer- 
ing tliese  pi-inciplcs  of  right,  justice,  and  equity.  The 
growth  of  llif  I'iii^Hisli  law  would  have  been  identical  in 
its  external  form  with  that  of  Rome;  it  would  have  pro- 
ceeded in  an  orderly,  unbroken  manner  through  the  instru- 
mentality of  the  single  species  of  courts,  and  the  present 

2  II. id.,  p.  02. 


19  ORIGIN  OF  EQUITY  .TURISPRTJDENCE.  §  16 

double  nature  of  the  national  jurisprudence  —  the  two  great 
departments  of  "  Law  "  and  ''  Equity"—  would  have  been 
obviated.  This  result,  however,  was  prevented  by  several 
potent  causes  which  checked  the  progress  of  the  law  towards 
equity,  narrowed  its  development  into  an  arbitrary  and 
rigid  form,  with  little  regard  for  abstract  right,  and  made 
it  necessary  that  a  new  jurisdiction  should  be  erected  to 
administer  a  separate  system  more  in  accordance  with  natu- 
ral justice  and  the  rules  of  a  Christian  morality.  These 
causes  I  proceed  to  state. 

§  16.  Causes  Which  Made  a  Court  of  Equity  Necessary.— 
The  one  which  was  perhaps  the  source  and  explanation 
of  all  the  others  consisted  in  the  rigid  character,  external 
and  internal,  which  the  common  law  soon  assumed  after  it 
began  to  be  embodied  in  judicial  precedents,  and  the  unrea- 
soning respect  shown  by  the  judges  for  these  decisions 
merely  as  precedents.  There  was^  of  course,  a  time,  before 
the  character  of  the  law  as  a  lex  script  a  became  well  estab- 
lished, when  this  rigidity  and  inflexibility  was  not  exhib- 
ited.^ The  history  of  civilized  jurisprudence  can  show 
nothing  of  the  same  kind  comparable  with  the  blind  con- 
servatism with  which  the  common-law  judges  were  accus- 
tomed to  regard  the  rules  and  doctrines  which  had  once 
been  formulated  by  a  precedent,  and  the  stubborn  resistance 
which  they  interposed  to  any  departure  from  or  change  in 
either  the  spirit  or  the  form  of  the  law  which  had  been  thus 
established.  The  most  that  was  ever  allowed  was  the  ex- 
tension of  a  doctrine  to  facts  and  circumstances  present- 
ing some  points  of  difference  from  those  which  had  already 
formed  the  subject-matter  of  adjudication,  but  in  which  this 
difference  was  not  so  great  as  to  require  a  substantial 
modification  of  the  principle.     The  frequent  occurrence  of 

1  Thus  Bracton,  who  wrote  during  this  formative  period,  before  the  law 
had  entirely  assumed  its  rigid  character,  adopting  the  maxim  which  he 
found  in  the  Roman  law,  In  omnihus,  maxime  tamen  in  jure,  oequitas  spec- 
iancla  est,  asserts  that  the  common-law  courts  should  be  guided  by  equity 
oven  in  questions  of  strict  law:  Lib.  2,  chap.  7,  fol.  23  b;  Lib.  4,  fol.  186. 
But  this  doctrine  was  soon  abandoned. 


§  17  EQUITY    JURISPRUDENCE.  20 

cases  in  which  the  rules  of  the  law  produced  manifest  in- 
justice, and  of  cases  to  which  the  legal  principles  as  settled 
by  the  precedents  could  not  apply,  and  the  unwillingness 
of  the  common-law  judges  to  allow  any  modification  of  the 
doctrines  once  established  by  their  j^rior  decisions,  fur- 
nished both  the  occasion  and  the  necessity  for  another  tri- 
bunal, which  should  adopt  different  methods  and  exhibit 
different  tendencies.^ 

§  17.  ^Vhen  the  same  difficulty  of  rigidness,  arbitrari- 
ness, and  non-adaptation  to  the  needs  of  society  began  to 
be  severely  felt  in  the  administration  of  the  law  at  Eome, 
the  magistrates,  as  I  have  before  shown,  supplied  tlie 
remedy  by  means  which  they  already  possessed.  The  prsct- 
ors  constantly  invented  new  actions  and  defenses,  which 
preserved,  however,  a  resemblance  to  the  old ;  and  at  length 
they  boldly  freed  the  jurisprudence  from  the  restraints 
of  the  ancient  methods,  and  introduced  the  notion  of 
{Bquitas  by  which  the  whole  body  of  judicial  legislation  lie- 

2  This  position  of  resistance,  so  soon  assumed  by  the  common-hiw  judges, 
is  well  described  by  Mr.  Spence  in  the  following  passage:  "It  has  always 
been  held  by  the  great  oracles  of  the  law  that  the  principles  of  the  common 
law  are  founded  on  reason  and  equity;  and  as  long  as  the  common  law 
was  in  the  course  of  formation,  and  therefore  continued  to  be  a  lex  non 
scripta,  it  was  capable,  as  indeed  it  has  ever  continued  to  be  to  some  extent, 
of  not  only  being  extended  to  cases  not  expressly  provided  for,  but  which  were 
within  the  spirit  of  the  existing  law,  but  also  of  having  the  principles  of 
equity  applied  to  it  by  the  judges  in  their  decisions,  as  circumstances  arose 
which  called  for  the  application  of  such  principles.  But  in  the  course  of  time 
a  series  of  precedents  was  established  by  the  decisions,  or  respoiisa,  as  Brac- 
ton  calls  thorn,  of  the  judges,  which  were  considered  of  almost  equally  bijul- 
ing  authority  on  succeeding  judges  as  were  the  acts  of  the  legislature : 
and  it  became  difhcult  to  make  new  precedents  without  interfering  with  -those 
which  had  already  been  established.  Hence  (though  new  precedents  have 
ever  continued  to  be  made)  tlie  common  law  soon  became  to  a  great  extent 
a  lex  acripta  positive  and  inflexible;  so  that  the  rule  of  justice  could  not 
accommodate  itself  to  every  case  according  to  the  exigency  of  right  and 
justice":  1  Spence's  Eq.  Jur.,  pp.  321,  3'22.  The  description  of  the  text  is 
not  intended  to  apj)ly  to  the  entire  history  of  the  common  law.  Anotlier 
spirii  lias  animated  its  judges  since  the  example  set  by  Lord  Mansfield,  and 
itH  inherent.  |)o\vit  <if  development,  when  freed  from  the  narrow  and  obstruc- 
tive notions  of  llie  carlir-r  judges,  has  been  fully  exhibited  both  in  England 
an<l  in  the  United  Stateu. 


21  ORIGIN  OF  EQUITY  JURISPEUDENCE.  §  17 

came  in  time  reconstructed.  All  the  process  of  develop- 
ment was  completed  without  any  violent  or  sudden  change 
in  the  judicial  institutions,  and  the  Roman  law  thus  pre- 
served its  unity  and  continuity.  Tlie  English  common-law 
judges,  on  the  other  hand,  set  themselves  with  an  iron  de- 
termination against  any  modification  of  the  doctrines  and 
rules  once  estal)]ished  by  precedent,  any  relaxation  of  the 
settled  methods  v/hieh  made  the  rights  of  suitors  to  depend 
upon  the  strictest  observance  of  the  most  arbitrary  and 
technical  forms,  any  introduction  of  new  principles  which 
should  bring  the  law  as  a  whole  into  a  complete  harmony 
with  justice  and  equity.  I  would  not  be  understood  as  as- 
serting that  tile  conservatism  of  the  courts  was  so  absolute 
as  to  i^revent  any  improvement  or  progress  in  the  law  from 
age  to  age.  1  only  describe  the  general  attitude  and  tend- 
ency during  the  period  in  which  the  court  of  chancery  took 
its  rise  and  for  a  long  time  thereafter.  The  improvement 
which  an  advancing  civilization  effected  in  the  nation  itself 
was  to  a  partial  extent  reflected  in  the  law.  It  is  certain, 
however,  beyond  the  possibility  of  dispute,  that  the  English 
common  law  was  always  far  behind  the  progress  of  the 
English  people,  and  in  very  many  particulars  retained  the 
impress  of  its  primitive  barbarism  down  to  the  present 
century.  By  the  continental  jurists  contemporary  with 
Coke,  Lord  Hale,  or  Blackstone,  it  was  regarded  with  min- 
gled feelings  of  wonder  and  contempt  as  a  barbarous  code; 
and  except  in  its  provisions  securing  the  personal  and 
political  rights  of  tlie  individual,  and  in  its  antagonism  to 
the  slavish  doctrine  of  the  Roman  jurisprudence.  Quod 
placuif  principi  legis  vigorem  hahet,  it  was  a  barbarous 
code.  Parliamentary  legislation  occasionally  interfered 
and  effected  a  special  reform;  and  the  princiioles  of  equity 
as  administered  by  the  Court  of  Chancery  reacted  to  a 
slight  degree  upon  the  law ;  but  still  the  common-law  judges 
as  a  body  exhibited  the  blind  conservatism  which  I  have 
described  down  to  a  period  wholly  modern.  With  the  partial 
exception  of  Lord  Holt,  whose  masculine  intellect  some- 


§  18  EQUITY    JURISPRUDENCE.  22 

times  broke  away  from  the  trammels,^  Lord  Mansfield  was 
the  first  great  English  judge  who  consciously,  and  with  sys- 
tematic and  persistent  purpose,  adopted  the  policy  of  the 
Roman  praetors,  endeavored  to  impart  a  new  life  and  give 
a  new  direction  to  the  growth  of  the  common  law,  and  by 
means  of  equitable  principles  in  combination  with  its  own 
methods  to  reform  the  law  from  within.  As  a  reward  for 
these  innovations,  Lord  Mansfield  was  charged  in  his  own 
day  —  and  the  accusation  has  been  handed  down  as  a  part 
of  judicial  history  —  with  ignorance  of  the  English  law. 
Although  the  work  which  Lord  Mansfield  began  was  inter- 
rupted by  his  narrow-minded  successor,  Lord  Kenyon,  it 
has  been  taken  up  and  carried  on  in  the  same  spirit  by 
many  of  the  able  judges  who  have  adorned  the  English 
bench  within  the  present  century,  and  by  the  state  and 
national  courts  of  this  country,  until  the  common  law  has 
now  become  a  truly  scientific  and  philosophical  code. 

§  18.    A  second  cause  which  prevented  a  development  of 
the  national  jurisprudence  in  harmony  with  and  by  the  aid 

1  Lord  Holt  was  never  thoroughly  emancipated  from  a  fanatical  devotion 
to  the  ancient  law,  and  sometimes  resisted  innovations  which  even  his  in- 
ferior associates  on  the  bench  could  see  were  demanded  by  the  necessities  of 
society  and  of  business.  A  remarkable  instance  may  be  seen  in  his  refusal  to 
adopt  the  customs  of  merchants  in  regard  to  promissory  notes,  a  refusal 
which  compelled  Parliament  to  interfere  by  statute  and  place  these  con- 
tracts upon  the  same  basis  as  inland  bills  of  exchange.  On  the  other  hand, 
his  celebrated  opinion  in  Coggs  v.  Bernard  was  an  unprecedented  departure 
from  the  ordinary  modes  of  the  court,  and  opened  the  way  for  subsequent 
judges  to  follow  into  the  rich  mines  of  the  Roman  jurisprudence.  And  his 
no  less  celebrated  judgment  in  Ashby  v.  White  exhibited,  more  clearly  than 
has  perhaps  been  done  by  any  other  judge,  the  unlimited  power  of  develop- 
ment inherent  in  the  common  law  where  its  essential  principles  are  freely 
carried  out  and  its  bondage  to  form  and  established  precedent  is  broken. 
Among  the  recent  English  judges  who  have  represented  the  ancient  rather 
than  the  modern  tendencies  of  the  law,  ami  who  have  exalted  its  rules  of 
form,  Baron  I'arke  stands  the  foremost,  and  has  actually  obtained  the  repu- 
tation of  a  jurist,  because  he  was  able  to  discuss  and  state  these  arbitrary 
dogmas  in  a  scientific  manner,  and  to  clothe  them  with  some  appearance  of 
a  philosophic  system.  But  in  no  series  of  English  reports  are  the  rights  of 
Huitors  made  to  depend  upon  a  romplianoe  with  mere  forms,  and  the  decisions 
made  to  turn  upon  mere  technicalities,  more  than  in  the  volumes  of  Meeson 
and  Welsby. 


23  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  19 

of  the  equitable  notions  contained  in  the  Roman  codes,  and 
which  therefore  tended  to  the  creation  of  a  separate  court 
of  chancery,  was  the  fact  that  the  rules  concerning  real 
property  and,  to  a  considerable  extent,  those  concerning 
personal  status  and  relations,  were  feudal  in  their  origin 
and  nature.  From  whatever  source  the  ultimate  notion  of 
feudal  tenure  was  derived,  whether  from  the  Roman  em- 
phyteusis or  from  German  tribal  customs,  it  is  certain  that 
there  was  nothing  in  common  between  the  institutions  of 
feudalism  as  they  existed  under  the  Norman  kings,  and  the 
doctrines  of  the  Roman  law.  As  long,  therefore,  as  these 
institutions  continued  to  flourish  there  was  of  necessity  a 
large  and  most  important  part  of  the  English  law  which 
could  receive  no  accession  or  improvement  from  doctrines 
of  the  Roman  jurisprudence;  no  combination  of  the  two 
was  possible.  Roman  principles  were  subsequently  intro- 
duced by  the  Court  of  Chancery  in  its  enforcement  of  uses 
as  a  special  kind  of  property  in  lands ;  but  there  was  even 
then  no  combination.  Feudal  dogmas  were  maintained  by 
the  courts  of  law,  and  Roman  notions  by  the  court  of 
equity;  and  the  two  systems  ran  on,  confronting  and  even 
hostile  to  each  other,  until  the  Parliament  interposed  in  the 
reign  of  Henry  VIII.,  and  by  the  celebrated  Statute  of  Uses 
effected  a  partial  union. 

§  19.  Although  the  feudal  institutions  in  their  integrity 
were  undoubtedly  an  obstacle  to  the  introduction  of  Roman 
law  principles,  and  the  development  of  one  homogeneous 
jurisprudence  for  the  English  people,  still  the  obstacle  was 
not  insuperable.  The  same  institutions  existed  on  the  con- 
tinent, and  in  Germany,  especially,  they  have  largely  modi- 
fied the  law  down  to  the  time  when  the  present  system  of 
codes  was  adopted.  Notwithstanding  this  fact,  the  Roman 
law  has  entered  as  the  principal  element  into  the  juris- 
prudence of  every  western  continental  nation,  and  through 
it  the  doctrines  of  equity  have  been  everywhere  accepted, 
not  as  constituting  a  separate  department,  but  as  pervading 
and  influencing  the  whole. 


§  20  EQUITY    JURISPBUDENCE.  24: 

§  20.  The  tliird  cause  which  I  shall  mention,  and  it  was 
an  exceedingly  important  one  in  its  effects  upon  the  juris- 
diction of  chancery,  which  had  already  become  quite  exten- 
sive, arose  from  the  position  and  policy  of  the  kings,  the 
Parliament,  and  the  nation  towards  tlie  church  of  Eome. 
The  English  kings  had  maintained  a  long  and  bitter  strug- 
gle with  the  Pope  and  his  emissaries  among  the  higher 
ecclesiastics  to  maintain  the  independence  of  the  crown  and 
of  the  Anglican  branch  of  the  church.  In  the  reign  of 
Edward  III.,  the  exactions  of  the  Papal  See  became  pe- 
culiarly hateful  to  the  King  and  to  the  nation.  Having 
the  support  of  his  Parliament,  Edward  refused  payment 
of  the  tribute  which  had  been  demanded  by  the  Pope,  and 
measures  were  taken  to  prevent  any  further  encroachments. 
A  general  hostility,  or  at  least  a  sentiment  of  opposition, 
to  the  Papal  court  and  to  everything  connected  with  it  had 
sprung  up  and  spread  among  all  ranks  of  the  laity.  The 
Roman  law  fell  under  tliis  common  aversion.  Partly  from 
its  name,  partly  because  it  was  supported  by  the  Papal  See, 
both  on  account  of  its  connection  with  the  canon  law,  and 
on  account  of  its  doctrines  favorable  to  absolutism,  and 
partly  because  a  knowledge  of  it  prevailed  most  extensively 
among  the  ecclesiastics,  so  that  it  was  popularly  regarded 
as  an  instrument  of  the  church,  the  Eoman  law,  which  had 
been  treated  with  favor  by  Henry  II.,  Henry  III.,  and 
Edward  I.,  and  by  the  judges  themselves  in  former  reigns, 
became  an  object  of  general  dislike,  and  even  antipathy. 
h\  the  reign  of  Henry  III  the  barons  formally  declared 
that  they  would  not  suffer  the  kingdom  to  be  governed  by 
the  Koiiian  law;^  and  the  common-law  judges  prohibited  it 

1  "  Quod  iiolucrunt  Icf^cs  Anf!;liie  mutare,  qua?  usque  ad  ilhid  tempus 
UBitata-  fucruut  r-t  afjprohatio.'  Tlie  occasion  upon  wliich  this  mcniorablo 
declaration  was  made,  at  the  f'arlianiciit  of  Mcrton,  A.  D.  1236,  was  the 
attempt  of  tli<-  ccclcHiaHtics  to  introduce  tlie  doctrine  that  illegitimate  chil- 
dren are  inadc  jcffitimate  by  the  subsequent  marriage  of  their  parents.  This 
doctrine  was  peculiarly  distasteful  to  the  English  barons,  since  it  interfered 
with  the  feudal  rules  of  inlurHance.  For  a  full  account  of  the  controversy 
in  all   its  stages,  see   Rracton  and  his  relations  with  the  Roman  Law,  p.  129. 


25  ORIGIN  OF  EQUITY  JURISPRUDENCE,  §  20 

from  being  any  longer  cited  in  their  courts.  This  action 
of  the  barons  and  judges  was  certainly  a  mistake,  and  it 
produced  an  opposite  effect  from  the  one  intended.  The 
Roman  law,  instead  of  being  banished,  was  simply  trans- 
ferred to  another  court,  which  was  not  governed  by  com- 
mon-law doctrines.  As  the  law  courts  intentionally  cut 
themselves  off  from  all  opportunity  of  borrowing  equitable 
principles  from  this  foreign  source,  the  necessity  arose  for 
a  separate  tribunal,  in  which  those  principles  could  be 
recognized.  It  therefore  followed,  immediately  upon  this 
prohibition,  that  the  hitherto  narrow  jurisdiction  of  the 
Court  of  Chancery  was  greatly  increased,  and  extended 
over  subject-matters  which  required  an  ample  and  constant 
use  of  Roman  law  doctrines.  To  the  same  cause  was  chiefly 
due  the  selection,  which  was  really  a  necessity,  of  chancel- 
lors from  among  the  ecclesiastics,  during  the  period  while 
the  jurisdiction  of  the  court  was  thus  enlarged  and 
established." 

Blackstone  states  the  time  and  place  to  have  been  the  Parliament  of  Tewks- 
bury,  A.  D.  1234. 

2  In  confirmation  of  the  text,  I  quote  the  following  passages  from  Mr. 
Spence.  Speaking  of  the  prohibition  by  the  common-law  judges  mentioned 
in  the  text,  he  says:  "Perhaps  one  object  of  the  judges  might  have  been 
to  exclude  the  doctrine  as  to  fidei-commissa,  or  trusts,  which  first  came  dis- 
tinctly into  notice  during  this  reign  (Richard  II.).  Tlie  effect,  how^ever,  of 
the  exclusion  of  the  Roman  law  from  the  common-law  tribunals  was  that 
a  distinct  code  of  laws  was  formed  and  administered  in  the  Court  of  Chan- 
cery, by  which  the  enjoyment  and  alienation  of  property  were  regulated  on 
principles  varying  in  many  essential  particulars  from  the  system  which 
those  who  originated  and  carried  into  effect  the  exclusion  of  the  Roman  law 
were  so  anxious  to  preserve.  Nor  were  these  united  endeavors  for  the  exclu- 
sion of  the  Roman  law  less  important  in  fixing  the  appointment  of  the  office 
of  Chancellor  in  the  members  of  the  clerical  body.  Notwithstanding  all  the 
efforts  that  were  made  to  repress  them,  trusts  soon  became  general.  Some 
rules  for  their  regulation  were  absolutely  necessary.  It  -was  from  the  Roman 
law  they  had  sprung  up;  who  so  proper  to  introduce  and  systematize  the 
rules  necessary  for  their  regulation  as  those  who  were  now  exclusively  con- 
versant with  this  law,  and  who  alone,  as  it  was  excluded  from  the  common- 
law  courts,  could  resort  to  it  for  their  guidance?  Accordingly,  from  this 
time,  with  some  exceptions,  none  but  clerical  chancellors  were  appointed, 
down  to  the  twenty-first  year  of  Henry  VIII.  It  may  be  well  doubted 
whether  but  for  the  last  circumstance  the  system  of  equitable  jurisprudence 


§  21  EQUITY    JURISPRUDENCE.  26 

§  21.  The  Earliest  Common-law  Actions  and  Procedure. — 
Tlie  last  cause  which  I  shall  mention,  and  practically  the 
most  immediate  and  efficient  one  in  its  operation  to  prevent 
any  expansion  of  the  common  law,  so  as  to  obviate  the 
necessity  of  a  separate  equitable  jurisdiction,  was  the  pecu- 
liar procedure  which  was  established  by  the  courts  at  a 
very  early  day,  and  to  which  they  clung  with  a  surprising 
tenacity.  This  procedure  furnished  a  fixed  number  cf 
*'  forms  of  action."  Every  remedial  right  must  be  en- 
forced through  one  of  these  forms;  and  if  the  facts  of  a 

which  -vve  find  established  in  the  reign  of  Henry  VIII.,  on  which  the  doctrine 
of  uses  and  much  of  the  modern  jurisdiction  of  the  court  is  founded,  would 
then  have  existed.  The  antipathy  to  the  Roman  law  which  in  the  reign  of 
Elizabeth  was  extended,  as  regards  a  considerable  portion  of  the  community, 
to  everything  Roman,  and  the  intensit}'  of  which  lias  scarcely  yet  subsided, 
broke  forth  in  the  latter  end  of  the  reign  of  Elizabeth,  and  in  that  of  James  I., 
in  a  way  that  leaves  little  doubt  as  to  what  would  have  become  of  the  equi- 
table principles  of  the  Court  of  Chancery,  if  that  court  in  its  infancy  had 
been  permanently  committed  to  common-law  judges  as  chancellors.  I  can- 
not but  here  notice,  as  some  confirmation  of  the  conjecture  which  is  hazarded 
above,  that  a  writer  of  the  reign  of  James  I.,  who,  if  not,  as  he  styles  himself, 
a  sergeant,  was  evidently  speaking  the  sentiments  of  that  order,  says: 
'The  common  law  commandeth  all  that  is  good  to  be  done";  'The  suit  by 
•subpoena  is  against  the  common  weal  of  the  realm.'  The  whole  of  the 
system  which  formerly  prevailed  in  the  Court  of  Chancery  as  to  uses,  and 
which  was  then  applied  to  trusts,  is  also  denounced  by  him  in  terms  which 
show  that  under  cliancellors  taken  from  the  professors  of  the  common  law 
merely,  the  modern  system  of  equitable  jurisprudence  would  never  have  been 
reared,  at  least  in  the  Court  of  Chancery.  One  of  his  complaints  is,  that  re- 
lief was  given  \\hcre  the  amount  secured  by  a  bond  or  recognizance  had  been 
paid,  and  no  release  obtained."  (It  was  one  of  tiie  absurd  doctrines  of  the 
old  common  law,  that  a  sealed  instrument  could  only  be  discharged  by 
another  instrunu'ut  of  as  high  a  character.  If  the  debtor  on  a  bond  paid  the 
full  amount,  and  failed  to  obtain  an  acquittance  under  seal,  or  a  surrender 
u])  of  the  instrument,  even  though  he  took  a  written  receipt  in  full,  he  was 
still  liable,  and  could  have  no  defense  to  an  action  on  the  bond!  One  of  the 
first  measures  of  equity  was  to  overthrow  this  iniquitous  rule  by  enjoining 
tiie  action  at  law  brought  under  such  circumstances  against  the  debtor,  and 
it  is  of  this  interference  that  tl.e  writer  in  questibri  bitterly  complains.  lie 
says:)  "When  a  bill  has  l)een  made  to  the  Chancellor  that  such  a  man 
should  have  great  wrong  to  l)e  compelled  to  pay  two  times  for  one  thing,  the 
<'liaricellor,  not  knowing  the  (joodiiesH  of  the  common  law  (  !),  has  timorously 
<Iirectc<i  a  subprena  to  tlie  j)Iainti(r  (in  the  action  at  law);  and  the  Chan- 
<-ellor,  regarding  no  law.  but  trusting  to  his  f)wn  wit  and  wisdom,  giveth 
judgment  as  it  pleaseth  him":   1  Spence's  Eq.  ilur.,  p.  .347. 


27  ORIGIN  OF  EQUITY  JURISPRUDENCE.  §  21 

particular  case  were  such  that  neither  of  them  was  appro- 
priate, the  injured  party  was  without  any  ordinary  legal 
remedy,  and  his  only  mode  of  redress  was  by  an  application 
made  directly  to  the  King.  The  initial  step  in  every  action 
was  a  written  document  issued  in  the  name  of  the  King, 
called  a  writ,  which  was  both  the  commencement  and  the 
foundation  of  all  subsequent  i)roceedings.  This  document 
gav^e  a  brief  summary  of  the  facts  upon  which  the  right  of 
action  was  based,  and  contained  certain  technical  formulas 
indicating  what  form  of  action  was  brought  and  what  remedy 
was  demanded.  If  it  had  been  possible  for  suitors  or 
the  officers  of  the  court  to  multiply  these  writs  indefinitely, 
so  as  to  meet  all  possible  circumstances  and  social  relations, 
there  would  have  been  no  difficulty,  and  the  procedure  could 
have  been  expanded  so  as  to  embrace  every  variety  of 
wrong  and  every  species  of  remedial  right  which  might 
subsequently  arise  in  the  course  of  the  national  develop- 
ment. But  there  was  absolutely  no  such  possibility,  and 
herein  was  the  essential  vice  of  the  system.  The  nature  of 
these  writs  was  fixed,  and  could  not  be  substantially 
changed.  A  writ  had  been  settled,  not  only  for  each  of  the 
different  "  forms  of  action,"  but  for  the  facts,  circum- 
stances, and  events  which  could  constitute  the  subject- 
matter  of  the  particular  actions  embraced  within  each  one 
of  these  several  *'  forms  of  action."  The  precedents  of  all 
the  writs  which  had  been  thus  established  were  kept  in  an 
office  connected  with  the  chancery,  called  the  Registra  Bre- 
vium.  Certain  officers  of  the  chancery  were  charged  with 
the  duty  of  issuing  the  writs  to  plaintiffs,  and  this  they  did 
by  selecting  and  copying  the  one  which  agreed  with  the 
facts  of  the  applicant's  case.  If  no  writ  could  be  found  in 
the  collection  which  substantially  corresponded  with  the 
facts  constituting  the  ground  of  complaint,  then  the  plain- 
tiff could  have  no  action.  The  chancery  clerks  could  not 
draw  up  entirely  new  writs,  nor  alter  the  existing  ones  in 
any  substantial  manner;  it  is  probable,  however,  that  they 
assumed  to  make  some  slight  changes,  so  as  to  accommo- 


S  22  EQUITY    JURISPRUDENCE.  2S 

date  the  recitals  to  the  facts  of  special  cases,  but  this  power 
could  only  be  exercised  within  the  narrowest  limits.  There 
were,  however,  certain  kinds  of  facts  connected  with  every 
cause  of  action,  which  might  be  varied.  The  statements  in 
the  writs  were  somewhat  general  in  their  terms,  some  ap- 
plying to  land,  some  to  chattels,  others  to  persons,  debts, 
torts ;  and,  of  course,  the  particulars  of  quantity,  size,  value, 
time,  place,  amount  of  damage,  and  the  like,  were  not  mate- 
rial, and  could  be  varied  without  limit.  One  other  fact  of 
the  utmost  importance  remains  to  be  mentioned.  Although 
the  chancery  clerks  decided  in  the  first  place  upon  the  form 
and  kind  of  writ  in  every  case,  and  thus  determined  the 
species  of  action  to  be  brought,  this  decision  did  not  in 
the  least  protect  or  secure  the  plaintiff  after  he  had  com- 
menced his  action.  When  the  action  came  before  the  com- 
mon-law courts,  the  judges  assumed  and  constantly  exer- 
cised the  power  of  determining  the  sufficiency  of  the  writ; 
and  if  tliey  held  that  it  was  not  the  proper  one  for  the  case, 
or  that  its  recitals  of  facts  or  formulas  were  imperfect  or 
mistaken,  no  attention  was  given  to  the  prior  decision  of 
the  chancery  officials,  the  writ  and  action  were  dismissed, 
and  the  plaintiff  thrown  out  of  court. 

§  22.  The  ancient  actions  of  the  common  law,  prior  to 
the  statutory  legislation  hereafter  mentioned,  as  described 
by  Bracton,  were  of  two  general  classes :  1.  Those  which 
concerned  lands  and  all  estates  or  interests  therein;  and 
2.  Those  which  concerned  persons,  chattels,  contracts,  and 
torts.  The  former  class,  the  Beat  Actions,  included  a  con- 
siderable number  of  particular  actions,  adapted  to  various 
estates  and  rights,  some  for  determining  the  title,  others 
for  the  recovery  of  possession  merely;  and  were  all  techni- 
cal and  ,'ii'])il  r;n  y  in  tlicii-  modes  of  procedure.  The  action 
of  ejectment  by  wliicli  they  were  superseded  was  a  growth 
of  later  times.  The  second  class,  the  Personal  Actions,  con- 
tained two  actions  ex  contractu,  '*  Debt  "  and  ''  Covenant," 
,'iri(1  1\vr)  r.r  rIcJirfo,  ''  ''I'res))ass  "  and  *'  Dctimio."  ^'  Ke- 
plevin,"  wliic'li   was  one  of  the  most  ancient  judicial  pro- 


'29  ORIGIN  OF  EQUITY   JURISPRUDENCE.  §  23 

ceedings  known  to  the  English  law,  was  so  restricted  in  its 
use  to  special  circumstances  and  inferior  courts  that  it  was 
not  classified  among  the  ordinary  common-law  forme  of 
action.  The  functions  of  these  four  personal  actions  are 
so  well  known  that  no  description  of  them  is  necessary. 

§  23.  From  this  enumeration  it  is  plain  that  the  common 
law  furnished  a  very  meager  system  of  remedies,  utterly 
insufficient  for  the  needs  of  a  civilization  advancing  beyond 
the  domination  of  feudal  ideas.  The  appliances  for  main- 
taining rights  over  land  were  perhaps  sufficient  in  num- 
ber and  in  variety,  but  they  were  excessively  cumbrous, 
and  the  rights  of  suitors  were  liable  to  be  defeated  by  some 
failure  in  technical  matters  of  form.  The  lack  of  remedial 
instruments  was  chiefly  felt  in  the  class  of  personal  actions. 
No  contract  could  be  enforced  unless  it  created  a  certain 
■debt,  or  unless  it  was  embodied  in  a  sealed  writing.  No 
means  was  given  for  the  legal  redress  of  a  wrong  to  per- 
son or  property,  unless  the  tortious  act  was  accompanied 
with  violence,  express  or  implied.  The  injuries  and 
breaches  of  contract  which  now  form  the  subject-matter  of 
so  much  litigation  were  absolutely  without  uny  legal  rem- 
edy. It  is  true,  the  ancient  records  show  a  few  instances 
in  which  the  action  of  trespass  was  extended  to  torts  with- 
out violence,  such  as  defamation,  but  these  cases  were  ex- 
ceptional and  governed  by  no  legal  rule.  The  chief  de- 
fect, however,  of  the  legal  procedure,  which  rendered  it 
incomplete  as  a  means  of  administering  justice,  and  wholly 
insufficient  for  the  needs  of  a  people  whose  social  relations 
were  constantly  growing  more  complex,  consisted  in  its  in- 
ability to  adapt  its  actual  reliefs  to  the  varying  rights  and 
duties  of  litigants.  Whatever  might  be  the  form  of  action 
used,  the  remedy  conferred  by  its  judgment  was  either  a 
recovery  of  the  possession  of  land,  a  recovery  of  the  pos- 
session of  chattels,  or  a  recovery  of  money.  Although  these 
simple  species  of  relief  might  be  suited  to  a  primitive  so- 
ciety, the  necessity  of  other  and  more  specific  forms,  adapted 
to  various  circumstances  and  relations,  was  felt  as  soon 


'§§  24,  25  EQUITY    JURISPRUDENCE.  30 

as  the  progress  of  the  uatiou  towards  a  higher  civilization 
had  fairly  begun.  From  the  causes  which  I  have  thus  briefly 
described,  the  common-law  courts  were  closed  against  a 
large  and  steadily  increasing  class  of  rights  and  remedies, 
and  a  distinct  tribunal,  with  a  broader  and  more  equitable 
jurisdiction  and  mode  of  procedure,  became  an  absolute 
necessity,  or  else  justice  would  be  denied. 

§  24.  Statute  of  Edward  I.  Concerning  New  Writs. —  Par- 
liament at  length  interposed  with  a  reformatory  measure 
whicli  was  intended  to  be  radical,  and  which  perhaps  might 
have  checked  the  growing  jurisdiction  of  chancery  if  the 
common-law  judges  had  treated  tlie  statute  in  the  same 
liberal  spirit  with  which  it  was  enacted.  As  all  writs  for 
the  commencement  of  actions  were  drawn  up  by  the  clerks 
in  chancery,  the  legislature  attempted  to  remove  all  the 
existing  difficulties  by  enlarging  the  powers  of  these  offi- 
cials, and  conferring  upon  them  a  wide  discretion  in  the 
invention  of  new  forms  of  writs,  suitable  to  new  condi- 
tions of  fact,  and  providing  for  remedial  rights  hitherto 
withont  any  means  of  enforcement.  In  tlie  reign  of  Ed- 
ward 1.  the  following  statute  was  passed:^  "Whenso- 
ever from  henceforth  it  shall  fortune  in  chancery  tluit  in 
one  case  a  writ  is  found,  and  in  a  like  case  falling  under 
like  law  and  requiring  like  remedy  is  found  none,  the 
clerks  of  the  chancery  shall  agree  in  making  the  writ,  or 
the  plaintiff  may  adjourn  it  into  the  next  Parliament,  and 
let  the  cases  be  written  in  which  they  cannot  agree,  and 
let.  Iliciii  i-cfcr  lliomselves  to  the  next  Parliament,  and  by 
consent  of  men  learned  in  the  law  a  writ  shall  be  made, 
lest  it  should  happen  after  that  the  court  should  long 
time  fail  to  minister  justice  nuto  complainants," 

§  25.  Limited  Results  of  This  Legislation.—  The  general 
intent  of  tliis  enactment  is  perfectly  clear,  and  it  should 
have  been  li])e)';illy  ;ind  largely  construed  in  accordance  with 
that  intent.     The  connnon-law  judges,  however,  applied  to 

1  i:!   Kilw.   I.,  clinp.  1,  §  24. 


31  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  2& 

it  a  strict  and  narrow  construction,  a  literal  and  verbal 
interpretation,  wholly  foreign  to  its  design  and  meaning. 
Although  by  its  means  the  new  common-law  forms  of  ac- 
tion known  as  ''  Case,"  "  Trover,"  and  "Assumpsit  " 
were  invented^  which  in  later  times  have  been  the  most  po- 
tent instruments  for  the  development  and  improvement  of 
the  common  law  itself,^  yet  so  far  as  the  legislature  pro- 
posed to  enlarge  the  scope  of  the  law  by  the  introduction  of 
equitable  principles  and  remedies,  and  thereby  to  stop  the 
growth  of  the  equitable  jurisdiction  of  chancery,  that  pur- 
pose was  wholly  frustrated  by  the  action  of  the  law  judges 
in  construing  and  enforcing  the  statute.  The  main  points 
in  which  this  restrictive  interpretation  was  made  effective, 
so  as  to  defeat  the  ultimate  object  of  the  statute,  were  the 
following:  — 

§  26.  1.  The  act  permitted  the  framing  of  new  writs  in 
cases  "  falling  under  like  laiv  and  requiring  like  remedy  " 
with  the  existing  ones.  Upon  this  permissive  language  the 
courts  put  a  highly  restrictive  meaning.  As  the  comm.on- 
law  forms  of  action  gave  only  three  different  kinds  of  reme- 
dies, every  remech"  obtained  through  the  means  of  the  new 
writs  must  be  like  one  of  tliese  three  species.  Thus  at  one 
blow  all  power  was  denied,  of  awarding  to  suitors  any  spe- 
cial equitable  relief  which  did  not  fall  within  one  or  the 
other  of  these  three  classes,  and  parties  who  required  such 
special  forms  of  remedy  were  still  compelled  to  seek  them 
from  another  tribunal.  The  same  was  true,  irrespective  of 
the  particular  kinds  of  relief,  of  all  cases  which  might  arise, 
quite  dissimilar  in  their  facts  and  circumstances  from  those 
to  which  the  existing  forms  of  action  applied;  not  falling 
under  "  like  law,"  they  were  held  to  be  without  the  scope 
of  the  statute,  and  the  complainants  could  obtain  no  redress 
from  the  common-law  courts. 

1  I  have  elsewhere  described  the  manner  in  which  these  new  actions  were 
invented, —  one  of  the  most  interesting  events  in  the  history  of  the  English 
law.     See  Pomeroy's  Introduction  to  Mimicipal  Law,  §§  200-204. 


§§  27-29  EQUITY  Jur:isrr.uDENCE.  32 

§  27.  2.  The  statute  only  provided  for  new  writs  on  be- 
half of  plaintiffs.  As  civilization  progressed,  and  the  rela- 
tions of  men  grew  more  intricate  from  increase  of  com- 
merce, trade,  and  other  social  activities,  new  defenses  as 
well  as  new  canses  of  action  constantly  arose.  Although 
these  were  not  within  the  letter  of  the  act,  they  were  fairly 
within  its  sjDirit.  But  the  law  courts  adhered  to  the  letter, 
and  ignored  the  spirit.  If,  therefore,  the  new  matter  of 
defense  did  not  fall  within  the  jDrescribecl  formulas  of  the 
legal  actions,  and  did  not  conform  to  the  established  rules 
defining  legal  defenses,  the  party  must  seek  relief  in  some 
manner  from  the  jurisdiction  of  the  chancellor.^ 

§  28.  ?).  Although  the  statute  authorized  the  ''  clerks  of 
chancery  "  to  frame  tlie  new  writs,  and  seemed  by  implica- 
tion to  confer  upon  them  the  absolute  powers  with  respect 
to  the  matter  which,  it  was  conceded,  were  held  by  Parlia- 
ment, still  the  common-law  judges  assumed  for  themselves 
the  same  exclusive  jurisdiction  to  pass  upon  the  propriety 
and  validity  of  the  new  writs  which  they  had  always  exer- 
cised over  those  issued  by  the  clerks  prior  to  the  statute. 
They  did  not  regard  the  action  of  the  chancery  officials  in 
sanctioning  a  writ  which  would  give  a  new  remedial  right 
to  the  plaintiff  as  at  all  binding,  and  in  fact  rejected  all  the 
new  writs  contrived  in  pursuance  of  the  statute,  which  did 
not  closely  conform  to  some  one  of  the  existing  precedents. 
The  chancery  clerks,  being  ecclesiastics  and  acquainted  with 
the  Eoman  law,  seem  to  have  fashioned  most  of  their  new 
wi-its  ill  imitation  of  the  Roman  fonnulcc;  but  all  these  in- 
novations upon  the  established  methods  the  law  courts  re- 
fused to  accept. 

§  29.  This  legislation,  liowever,  produced  in  the  course  of 
time  the  most  beneficial  effects  ui)on  the  development  of  the 
common  law  itself,  independently  of  the  chancery  jurisdic- 
tion.   TJj)on  the  basis  of  cei'tain  new  writs  contrived  by  the 

1  'I'liis  jiirisdiftion,  to  Im'  cfrccitivo,  would  generally  bo  exercised  by  means 
of  enjoinin<,'  (lie  legal  action  brought  against  tiie  party  applying  to  the  chan- 
cellor,  mid    ill    wliicli   bis   atleinplcd    defense'   liad   been    rejected. 


33  •  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  30 

chancery  clerks  and  adopted  by  the  law  judges,  three  addi- 
tional legal  actions  were  invented, ''  Trespass  on  the  Case," 
find  its  branches  or  offshoots,  "  Trover,"  and  '' Assumpsit, " 
which  have  been  the  most  efficient  and  useful  of  all  the  forms 
of  legal  actions  in  promoting  the  growth  of  an  enlightened 
national  jurisprudence.  Without  the  action  of  ''  Case  '' 
applicable  to  an  unlimited  variety  of  wrongs,  and  affording 
an  oj^portunity  for  enforcing  the  maxim,  Ubi  jus  ibi  reme- 
dium,  and  the  action  of  "Assumpsit,"  by  w^hich  the  multi- 
form contracts  growing  out  of  trade  and  commerce  could  be 
judicially  enforced,  it  is  safe  to  say  that  the  common  law  oi 
England  would  have  remained  stationary  in  the  condition 
which  it  had  reached  at  a  time  not  later  than  the  reign  of 
Edward  III.  These  two  actions  resembled  the  act'wnes 
honce  fidei  of  the  Koman  law,  in  admitting  motives  of  nat- 
ural right  and  justice  for  the  decision  of  causes,  instead  of 
purely  technical  and  arbitrary  rules  of  form.  When  at  a 
still  later  day  the  principles  of  equity  began  to  react  upon 
the  law,  and  the  common-law  judges  freely  apjolied  these 
eciuitable  doctrines  in  adjudicating  upon  legal  rights,  it  was 
chiefly  through  these  actions  of  Case  and  xVssumpsit  that 
the  work  of  reforming  and  reconstructing  the  common  law 
was  accomplished.  The  actions  of  Trespass,  Covenant,  and 
Debt  have  remained,  even  to  the  present  day,  technical  in 
their  modes  and  arbitrary  in  their  rules ;  but  the  actions  of 
Case,  Trover,  and  Assumpsit  have  been  free  from  formal 
restraints,  flexible  in  their  adaptability,  capable  of  being 
administered  in  conformity  with  equitable  doctrines. 
Through  thoir  means,  many  of  the  rules  which  were  origin- 
ally established  by  the  Chancellor  have  been  incorporated 
into  the  law,  and  are  now  mere  legal  commonplaces.^ 

§  30.  Commencement  and  Progress  of  the  Chancery  Juris- 
diction.—I  have  thus  far  described  the  causes  existing  in  the 
early  condition  of  the  common  law,  and  in  the  attitude  of 

1  For  an  account  of  the  origin  and  progress  of  these  actions,  see  1  Spence's 
Eq.,  Jur.,  pp.  237-254;  Pomeroy's  Introduction  to  Municipal  Law,  §§  200-204. 

Vol.  1  —  3 


§  31  EQUITY    JURISPRUDENCE.  34 

the  law  courts,  wliicli  rendered  necessary  a  separate  tribunal 
"with  an  equitable  jurisdiction,  and  a  procedure  capable  of 
being  adapted  to  a  variety  of  circumstances,  and  of  award- 
ing a  variety  of  special  remedies.  I  now  proceed  to  state 
the  origin  of  this  tribunal,  and  the  principal  events  con- 
nected with  the  establishment  of  its  jurisdiction. 

§  31.  Original  Powers  of  the  King's  Council.  —  Under  the 
early  Norman  kings,  the  Crown  was  aided  by  a  Council  of 
Barons  and  high  ecclesiastics,  which  consisted  of  two 
branches,—  the  Greneral  Council,  which  was  occasionally 
called  together,  and  was  the  historical  predecessor  of  the 
Parliament,  and  a  Special  Council,  very  much  smaller  in 
number,  which  was  in  constant  attendance  upon  the  King, 
and  was  the  original  of  the  present  Privy  Council.  It  was 
composed  of  certain  high  officials,  as  the  Chancellor,  the 
Treasurer,  the  Chief  Justiciary,  and  other  members  named 
by  the  King.  This  Special  Council  aided  the  Crown  in  the 
exercise  of  its  prerogative,  which,  as  has  been  stated,  em- 
braced a  judicial  function  over  matters  that  did  not  or  could 
not  come  within  the  jurisdiction  of  the  ordinary  courts. 
The  extent  of  this  judicial  prerogative  of  the  King  was, 
from  its  nature  and  from  the  unsettled  condition  of  the 
country,  very  ill  defined.  It  appears  from  an  ancient  writer 
that  in  the  time  of  Henry  I.  the  Select  Council  generally 
took  cognizance  of  those  causes  which  the  ordinary  judges 
were  incapable  of  determining.  From  later  records  it  ap- 
pears that  the  council  acted  on  all  applications  to  obtain 
redress  for  injuries  and  acts  of  oppression,  wherever,  from 
the  heinousness  of  the  offense,  or  the  rank  and  power  of  the 
offender,  or  any  other  cause,  it  was  probable  that  a  fair 
trial  in  tlie  ordinary  courts  would  be  impeded,  and  also 
wherever,  by  force  and  violence,  tlie  regular  administration 
of  justice  was  liindered.  Tlie  council  also  seems  to  have  had 
a  jiirisdiclioii  in  cases  of  fraud,  deceit,  and  dishonesty, 
wliich  were  beyond  the  reacli  of  common-law  methods.  It 
is  cvidc'iit,  however,  that  this  extraordinary  jurisdiction  of 
the  King  and  council  was  not  always  exercised  without  op- 


35  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §§  32,  33^ 

position,  especially  when  the  matters  in    controversy   fell 
within  the  authority  of  the  common-law  courts. 

§  32.  Original  Common-law  Jurisdiction  of  the  Chancellor. — 
Side  by  side  with  this  extraordinary  or  prerogative  judicial 
function  exercised  by  the  King,  or  by  the  Select  Council  in 
his  name  and  stead,  there  grew  up  a  jurisdiction  of  the 
Chancellor.  This  is  not  the  place  to  detail  the  numerous 
special  powers  of  that  officer,  for  we  are  only  concerned  with 
those  which  were  judicial.  It  is  certain  that  the  Chancellor 
possessed  and  exercised  an  important  ordinary  —  that  is, 
common-law  —  jurisdiction,  similar  to  that  held  b}^  the 
common-law  courts,  and  wholly  independent  of  the  extraor- 
dinary prerogative  jiiiisdiction  originally  possessed  by  the 
King  and  council,  and  afterguards  delegated  to  the  Chancel- 
lor himself.  The  proceedings  in  causes  arising  before  the 
Chancellor,  under  this,  his  ordinary  jurisdiction,  were  com- 
menced by  common-law  process,  and  not  by  bill  or  petition; 
he  could  not  summon  a  jury,  but  issues  of  fact  in  these  pro- 
ceedings were  sent  for  trial  before  the  King's  Bench.  When 
this  ordinary  common-law  jurisdiction  of  the  Chancellor 
commenced  is  not  known  with  certainty ;  it  had  risen  in  the- 
reign  of  Edward  III.  to  be  extensive  and  important,  and  it 
had  probabl}^  existed  through  several  reigns.^ 

§  33.  Jurisdiction  of  Grace  Transferred  to  the  Chancellor. — 
In  addition  to  this  ordinary  function  as  a  common-law 
judge,  the  Chancellor  began  at  an  early  day  to  exercise  the 
extraordinary  jurisdiction  —  that  of  Grace  —  by  delegation 
either  from  the  King  or  from  the  Select  Council.  The  com-- 
mencement  of  this  practice  cannot  be  fixed  with  any  pre- 
cision. It  is  probable  that  the  judicial  power  of  the  Chan- 
cellor as  a  law  judge,  and  his  consequent  familiarity  witk 

1  Many  of  the  cases  appearing  by  the  earliest  records  to  have  been  decided 
by  the  Chancellor,  and  which  have  been  regarded  by  some  writers  as  show- 
ing that  his  equitable  powers  were  then  ill  defined,  and  included  matters  of 
purely  legal  cognizance,  should  undoubtedly  be  referred  to  this  his  common- 
law,  and  not  to  his  equitable,  jurisdiction.  He  was,  in  fact,  during  this  earlv 
period,  and  before  the  equitable  jurisdiction  became  established,  a  common- 
laio  judge. 


§  34  EQUITY    .TUETSPKUDENCE.  3fi 

the  laws  of  the  reahn,  and  experience  in  adjudicating,  were 
the  reasons  why,  when  any  case  came  before  the  King  wliich 
•appealed  to  his  judicial  prerogative,  and  which  for  any 
cause  could  not  be  properly  examined  by  the  council,  such 
•case  was  naturally  referred  either  by  the  Crown  or  by  the 
-council  to  the  Chancellor  for  his  sole  decision.  Whatever 
may  have  been  the  motives,  it  is  certain  that  the  Chan- 
cellor's extraordinary  equitable  jurisdiction  commenced  in 
this  manner.  At  first  it  was  a  tentative  proceeding,  gov- 
erned by  no  rule,  the  reference  being  sometimes  to  the 
Chancellor  alone,  sometimes  to  him  in  connection  with 
another  official,  and  even  occasionally  to  another  official 
without  the  C'hancellor.  In  the  reign  of  Edward  I.,  such 
references  of  cases  coming  before  the  King  and  council  to 
the  Chancellor,  either  alone  or  in  connection  with  others, 
were  very  common,  although  the  practice  of  selecting  him 
alone  had  not  yet  become  fixed. 

§  34.  The  practice  of  delegating  the  cases  which  came 
before  the  prerogative  judicial  function  of  the  Crown  and 
its  council  to  the  Chancellor,  for  his  sole  decision,  having 
•once  commenced,  it  rapidly  grew,  until  it  became  the  com- 
mon mode  of  dealing  with  such  controversies.  The  fact 
that  the  attention  of  the  King  and  of  his  high  officials  was 
constantly  engaged  in  matters  of  state  administration 
rendered  this  method  natural  and  even  necessary.  In  the 
reign  of  Edward  III.,  the  Court  of  Chancery  was  in  full 
operation  as  the  ordinary  tribunal  for  the  decision  of  causes 
whicli  re(|uired  an  exercise  of  the  prerogative  jurisdiction, 
and  the  granting  of  special  remedies  which  the  common-law 
courts  could  not  or  would  not  give.  Edward  III.  estab- 
lished this  jurisdiction,  which  hitherto  had  been  merely 
permissive,  upon  a  legal  and  permanent  foundation.  In 
the  twenty-second  year  of  his  reign,  by  a  general  writ,  he 
<;rdered  that  all  such  matters  as  were  of  Grace  should  be 
referred  to  and  dispatched  by  the  Chancellor,  or  by  the 
Keeper  of  the  Privy  Seal.  The  Court  of  Chancery,  as  a 
regular  tribunal    for  the  administoi'ing  of  equitable  relief 


37  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  35 

and  extraordinary  remedies,  is  usually  spoken  of  as  dating 
from  this  decree  of  King  Edward  III. ;  but  it  is  certain  that 
the  royal  action  was  merely  confirmatory  of  a  process  which 
had  gone  on  through  many  preceding  years. 

§  35.  The  delegation  made  by  this  order  of  the  King  con- 
ferred a  general  authority  to  give  relief  in  all  matters,  of 
what  nature  soever,  requiring  the  exercise  of  the  preroga- 
tive of  Grace.  This  authority  differed  wholly  from  that 
upon  which  the  jurisdiction  of  the  law  courts  was  based. 
These  latter  tribunals  acquired  jurisdiction  in  each  case 
which  came  before  them  by  virtue  of  a  delegation  from  the 
Crown,  contained  in  the  particular  writ  on  which  the  case 
was  founded,  and  a  writ  for  that  purpose  could  only  be 
issued  in  cases  provided  for  by  the  positive  rules  of  the 
common  law.  This  was  one  of  the  fundamental  distinc- 
tions between  the  jurisdiction  of  the  English  common-law 
courts,  under  their  ancient  organization,  and  that  of  the 
English  Court  of  Chancery.^  The  principles  upon  which 
the  Chancellor  was  to  base  his  decision  in  controversies 
coming  within  the  extraordinary  jurisdiction  thus  conferred 
upon  him  were  Honesty,  Equity,  and  Conscience.^  The 
usual  mode  of  instituting  suits  in  chancery  became,  from 
this  time,  that  by  bill  or  petition,  without  any  writ  issued  on 
behalf  of  the  plaintiff. 

1  This  distinction  has  never  existed  in  the  United  States.  The  highest 
courts  of  law  and  of  equity,  both  state  and  national,  derive  their  jurisdic- 
tion either  from  the  constitutions  or  from  the  statutes.  There  is  no  such 
thing  as  a  delegation  of  authority  from  the  executive  or  the  legislature  to 
these  courts;  for  the  authority  of  the  courts  and  of  the  other  branches  of  the 
government  is  directly  derived  from  the  same  source, —  the  organic  body 
politic  composing  the  state  or  the  nation. 

2  The  following  case  illustrates  the  kind  of  matters  brought  before  th& 
King  and  referred  to  the  Chancellor :  Lady  Audley,  without  joining  her  hus- 
band, sued  her  father-in-law  to  obtain  a  specific  performance  of  certain  cove- 
nants in  her  favor  in  the  deed  of  settlement  made  on  her  marriage.  Nothing^ 
could  be  more  opposed  to  common-law  doctrines.  This  was  in  35  Edward  III., 
and  it  shows  that  two  most  important  heads  of  equity  jurisprudence  were 
then  known, —  the  protection  of  the  wife's  separate  interests,  and  specific 
performance  of  contracts.  See  Sir  F.  Palgrave's  History  of  the  Council, 
pp.  64,  67. 


^§  36,    37  EQUITY    JURISPRUDENCE.  38 

§  36.  Development  of  the  Equitable  Jurisdiction. —  Having 
thus  shown  the  historical  origin  of  the  chancery  as  a  court 
distinct  from  the  common-law  tribunals,  I  shall  now  de- 
scribe the  growth  of  the  equitable  jurisdiction  until -it  became 
settled  upon  the  certain  basis  of  principles  which  has  con- 
tinued without  substantial  change  to  the  present  time.  In 
the  earliest  periods  the  jurisdiction  was  ill  defined,  and  was 
in  some  respects  even  much  more  extensive  than  it  after- 
wards became  when  the  relations  between  the  equity  and 
the  common-law  tribunals  were  finally  adjusted.  This  was 
chiefly  due  to  the  troublous  times,  the  disturbed  condition  of 
the  country,  while  violence  and  oppression  everywhere  pre- 
vailed, and  the  ordinary  courts  could  give  but  little  protec- 
tion to  the  poor  and  the  weak;  when  the  powerful  land- 
owners were  constantly  invading  the  rights  of  their 
inferiors  and  overawing  the  local  magistrates.  In  the 
reign  of  Richard  II.  the  Chancellor  actually  exercised  some 
criminal  jurisdiction  to  repress  violence,  and  restrain  the 
lawlessness  of  the  great  against  the  poor  and  helpless.  He 
also  entertained  suits  concerning  land,  for  the  recovery  of 
possession  or  the  establishment  of  title,  and  even  actions  of 
trespass,  when  there  had  been  dispossession  with  great 
violence.^  A  strong  opposition  naturally  arose  to  these 
alleged  usurpations  by  the  Chancellors;  but  they  perse- 
vered as  long  as  was  necessary,  and  were  supported  by  the 
King  and  council. 

§  37.  There  were  other  reasons,  inhering  in  the  nature 

'of  its  procedure  and  extent  of  its  remedial  functions,  which 

operated  to  extend  the  authority  and  increase  the  business 

of   the   cliancery   court.     It   possessed   and   exercised  the 

power,  which  belonged  to  no  common-law  court,  of  ascer- 

1  The  iiiHtiinccs  of  llic  kiml  mentioned  in  the  text  are  probably  all  refer- 
able to  tlie  notion,  wliicli  sccnis  to  have  been  entertained  by  tlie  early  clian- 

•cellorH,  that  one  important  head  of  tlieir  jurisdietion,  founded  upon  the  prin- 
ciple  of  cnnncicnce,   was   the   protection   of  the   poor,  weak,   helpless,  and  op- 

■. preHHed    apainst   the    rich    and    powerful.      Tliis    early   notion    has   left    some 

itraccH  in  the  HubHequcnt  erpiity  jurisprudence. 


39  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  38 

taining  the  facts  in  contested  cases  by  an  examination  of 
the  parties  under  oath, —  the  "  probing  their  consciences," 
—  a  method  which  gave  it  an  enormous  advantage  in  the 
discovery  of  truth,  and  which  has  only  within  our  own  times 
been  extended  to  all  other  tribunals.  Again,  the  Chancellor 
was  able  to  grant  the  remedy  of  prevention,  which  was 
wholly  beyond  the  capacity  of  the  law  courts ;  and  he  seems 
to  have  used  this  kind  of  relief  with  great  freedom,  unre- 
strained by  the  rules  which  have  since  been  settled  with 
respect  to  the  injunction.  As  the  business  of  the  court  in- 
creased and  became  regular  and  constant,  the  practice  was 
established  in  the  reign  of  Richard  II.  of  addressing  the 
suitor's  bills  or  petitions  directly  to  the  Chancellor,  and  not 
to  the  King  or  his  council.  During  the  same  reign  a  statute 
was  passed  by  Parliament  for  the  purpose  of  regulating  the 
business  of  the  court  and  restraining  its  action,  which  en- 
acted that  when  persons  were  compelled  to  appear  before 
the  council  or  the  chancery  on  suggestions  found  to  be 
untrue,  the  Chancellor  should  have  power  to  award  damages 
against  the  complainant,  in  his  discretion.^  This  statute 
was  a  solemn  recognition  by  Parliament  of  the  court  as  a 
distinct  and  permanent  tribunal,  having  a  separate  juris- 
diction and  its  own  modes  of  procedure  and  of  granting 
relief;  and  the  enactment  was  an  important  event  in  the 
legal  history  of  the  chancery. 

§  38.  In  the  reign  of  Richard  II,,  Uses  first  came  dis- 
tinctly into  notice  and  were  brought  under  judicial  cog- 
nizance. This  species  of  interest  in  land  was  utterly  un- 
known to  the  common  law,  and  foreign  to  the  feudal  notions ; 
it  was  therefore  ignored  by  the  law  courts,  and  fell  under 
the  exclusive  control  of  chancery.  As  uses  were  derived, 
with  much  modification,  from  the  Roman  law,  the  doctrines 
of  that  jurisprudence  were  naturally  resorted  to  in  decid- 
ing controversies  respecting  them,  and  in  settling  the  rules 

1  17  Rich.  XL,  chap.  6. 


§  39  EQUITY    JUEISPRUDENCE.  4:(f 

for  their  government.  The  action  of  the  law  judges  in 
banishing  the  Roman  law  from  their  courts,  which  has 
already  been  described/  also  oi3erated  very  powerfully  to 
'  throw  the  consideration  of  these  matters  into  the  chancery^ 
and  greatly  augmented  and  strengthened  its  authority.  No 
one  subject  has  contributed  so  much  to  enlarge  and  perfect 
the  jurisdiction  of  the  Court  of  Chancery  as  the  uses  thus 
surrendered  to  its  exclusive  cognizance.  The  principles 
which  underlie  them  and  the  trusts  which  succeeded  them 
have  been  extended  to  all  departments  of  equity,  and  have 
been  more  efficient  than  any  other  cause  in  building  up  an 
harmonious  system  of  equitable  jurisprudence  in  conformity 
with  right  and  justice.  These  flexible  principles  have  been 
applied  to  almost  every  relation  of  life  affecting  property 
rights,  and  have  been  molded  so  as  to  meet  the  exigencies  of 
the  infinite  variety  of  'circumstances  which  arise  from 
modern  civilization.  They  have  even  reacted  upon  the  com- 
mon law,  and  have  been  recognized  by  the  law  judges  in 
their  settlement  of  the  rules  which  govern  the  rights  and 
obligations  growing  out  of  contract. 

§  39.  In  the  reigns  of  Henry  IV.  and  Henry  "V.,  the  Com- 
mons, from  time  to  time,  complained  that  the  Court  of 
Chancery  was  usurping  powers  and  invading  the  domain 
of  the  common-law  judges.  It  is  a  very  remarkable  fact, 
however,  that  this  opposition  never  went  to  the  extent  of 
denouncing  the  ecjuity  jurisdiction  as  wholly  unnecessary; 
it  was  always  conceded  that  the  law  courts  could  furnish 
no  adequate  remedy  for  certain  classes  of  wrongs,  and  that 
a  separate  tribunal  was  therefore  necessary.  As  the  result 
of  these  complaints,  statutes  were  passed  which  forbade  the 
Chancellor  from  interfering  in  a  few  specified  instances  of 
legal  cognizance,  but  did  not  abridge  his  general  jurisdic- 
tion, in  the  icign  of  l^]dward  IV.  the  Court  of  Chancery 
was  in  full  ofx'nif  ion  ;  the  mode  of  procedure  by  bill  filed  by 
the  complainant,  and  a  subpoena  issued  thereon  to  the  de- 

1  See  (mtc,  §  20. 


41  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  40 

fendant,  was  settled;  and  the  principles  of  its  equitable 
jurisdiction  were  ascertained  and  established  upon  the  basis 
and  with  the  limitations  which  have  continued  to  the  present 
time.  No  more  opposition  was  made  to  the  court  by  the 
Commons,  although  the  law  judges  from  time  to  time,  until 
as  late  as  the  reign  of  James  I.,  still  denied  the  power  of 
the  Chancellor  to  interfere  with  matters  pending  before 
their  own  courts,  and  especially  disputed  his  authority  to 
restrain  the  proceedings  in  an  action  at  law,  by  means  of 
his  injunction.  This  controversy  between  the  law  and  the 
equity  courts,  with  respect  to  the  line  which  separates  their 
jurisdictions,  has  in  fact  never  been  completely  settled ;  and 
perhax3S  it  must  necessarily  continue  until  the  two  juris- 
dictions are  blended  into  one,  or  at  least  are  administered 
by  the  same  judges  in  the  same  proceeding.^ 

§  40.  Abolition  of  the  Court  in  England  and  in  Many 
American  States.—  The  court  of  equity,  having  existed  as 
a  separate  tribunal  for  so  many  centuries,  has  at  length 
disappeared  in  Great  Britain  and  in  most  of  the  American 
states,  and  the  reforming  tendency  of  the  present  age  is 
strongly  towards  an  obliteration  of  the  lines  which  have 
hitherto  divided  the  two  jurisdictions.  By  the  recent  legis- 
lation of  England  and  of  many  of  the  states  in  this  country, 
the  separate  tribunals  of  law  and  of  equity  have  been  abol- 
ished ;  the  two  jurisdictions  have  been  so  far  combined  that 
both  are  administered  by  the  same  court  and  judge;  legal 
and  equitable  rights  are  enforced  and  legal  and  equitable 
remedies  are  granted  in  one  and  the  same  action;  and  the 
distinctions  which  hitherto  existed  between  the  two  modes 

1  Wherever  the  distinctions  between  suits  in  equity  and  actions  at  laAv  have 
been  abolished,  and  equitable  and  legal  rights  may  be  enforced,  and  equitable 
and  legal  remedies  may  be  obtained,  in  the  same  proceeding,  we  might  sup- 
pose this  contest  would  necessarily  have  disappeared,  and  it  necessarily 
would  have  disappeared  if  the  courts  had  carried  out  the  plain  intent  of  the 
legislation;  unfortunately,  however,  in  some  of  the  states  where  this  legisla- 
tion has  been  adopted,  the  distinction  between  the  legal  and  equitable  juris- 
dictions is  kept  up  as  sharply  as  though  there  were  the  separate  tribunals, 
and  the  different  systems  of  procedure. 


§  40  EQUITY    JURISPRUDENCE.  42 

of  procedure  are  as  far  as  possible  abrogated,  one  kind  of 
action  being  established  for  all  judicial  controversies.^ 

1  The  English  Judicature  Act  of  1873,  already  quoted,  after  uniting  all  the 
higher  tribunals  into  one  Supreme  Court  of  Judicature,  enacts  that  "  in  every 
civil  cause  or  matter,  law  and  equity  shall  be  concurrently  administered '' 
by  this  court  according  to  certain  general  rules;  and  that  generally  in  all 
matters  not  particularly  mentioned  in  other  provisions  of  the  act,  in  which 
there  is  any  conflict  or  variance  between  the  rules  of  equity  and  the  rules 
of  the  common  law,  with  reference  to  the  same  matter,  the  rules  of  equity 
shall  prevail:  36  &  37  Vict.,  chap.  66,  §§  24,  25.  This  great  reform,  which 
was  inaugurated  by  New  York  in  1848,  has  been  adopted  by  the  states  of 
Ohio,  Kentucky,  Indiana,  Wisconsin,  Iowa,  Minnesota,  IVIissouri,  Kansas, 
Nebraska,  Nevada,  California,  Oregon,  North  Carolina,  South  Carolina,  Ar- 
kansas, Connecticut,  Colorado,  and  by  the  territories  of  Washington,  Mon- 
tana, Idaho,  Dakota,  W^yoming,  Arizona,  Utah.  The  form  of  legislation 
which  has  generally  been  adopted  is  substantially  the  following:  "The  dis- 
tinction between  actions  of  law  and  suits  in  equity,  and  the  forms  of  all 
such  actions  and  suits  heretofore  existing,  are  abolished ;  and  there  shall  be 
in  this  state  hereafter  but  one  form  of  action  for  the  enforcement  or  pro- 
tection of  private  rights  and  the  redress  of  private  wrongs,  which  shall  be 
denominated  a  civil  action."  In  two  or  three  of  the  states  a  slight  external 
distinction  between  legal  and  equitable  actions  is  still  preserved.  Their 
codes  of  procedure  contain  the  following  provision :  "All  forms  of  action 
are  abolished;  but  the  proceedings  in  a  civil  action  may  be  of  two  kinds, 
'  ordinary  '  or  '  equitable.'  The  plaintiff  may  prosecute  his  action  by  equi- 
table proceedings  in  all  cases  where  courts  of  equity  had  jurisdiction,  and 
must  so  proceed  in  all  cases  where  such  jurisdiction  was  exclusive.  In  all 
other  cases  the  plaintiff  must  prosecute  his  action  by  ordinary  proceedings. 
An  error  of  the  plaintiff  as  to  the  kind  of  proceedings  adopted  shall  not 
-^ause  the  abatement  or  dismissal  of  the  action,  but  merely  a  change  into  the 
proper  proceedings,  and  a  transfer  of  the  action  to  the  proper  docket.  The 
provisions  of  this  code  concerning  the  prosecution  of  a  civil  action  apply  to 
both  kinds  of  proceedings,  whether  ordinary  or  equitable."  As  one  court 
has  jurisdiction  over  both  kinds  of  proceedings,  it  is  plain  that  the  dis- 
tinction here  preserved  is  wholly  superficial ;  it  really  goes  no  further  than 
the  designation  to  be  put  at  the  commencement  of  the  plaintiff's  pleading, 
and  the  placing  the  cause  on  the  proper  docket  or  trial  list  of  the  court.  In 
1879  Connecticut  adopted  a  Practice  Act,  which  contains  the  fundamental 
and  essential  features  of  the  reformed  system  of  procedure,  although  it  rather 
resembles  the  English  Judicature  Act  than  the  Codes  of  Procedure  in  the 
various  states,  since  it  only  enacts  these  fundamental  and  essential  principles, 
and  leaves  the  details  of  practice  to  be  regulated  by  rules  established  by  the 
courts.  It  provides,  in  section  1,  tliat  there  "  shall  be  but  one  form  of  civil 
action";  and  in  section  6:  "All  courts  which  are  vested  with  jurisdiction, 
both  at  law  and  in  equity,  may  hereafter,  to  the  full  extent  of  their  re- 
Bpective  jurisdictions,  administer  legal  and  e(iuitable  rights,  and  apply  legal 
and  ecpiitablc  rfniedifs,  in  favor  of  either  party,  in  one  and  the  same  suit, 
eo  tliat   legal   ami    "iiiiilable   rights  of   the   parties   may  be  enforced  and   pro- 


43  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §§  41,  42 

§  41,  Equity  Jurisdiction  in  Other  American  States. —  In  the 
national  courts  of  the  United  States,  and  in  most  of  the 
states  which  have  not  adopted  the  reformed  procedure,  the 
two  departments  of  law  and  equity  are  still  maintained 
distinct  in  their  rules,  in  their  procedure,  and  in  their 
remedies:  but  the  jurisdiction  to  administer  both  systems 
is  possessed  and  exercised  by  the  same  tribunal,  which  in 
one  case  acts  as  a  court  of  law,  and  in  the  other  as  a  court 
of  equity.  The  organization  of  the  judiciary  differs  widely 
in  the  states  of  this  class,  and  no  attempt  need  be  made  to 
descril)e  it.  The  procedure  at  law  is  based,  although  in 
most  instances  with  extensive  modifications,  upon  the  old 
common-law  method,  and  retains  in  whole  or  in  part  the 
ancient  forms  of  action.  The  equity  procedure  is  the  same 
in  its  essential  principles  with  that  which  long  prevailed  in 
the  English  Court  of  Chancery,  but  is  much  simplified  in 
its  details  and'  rules.^ 

§  42.  In  a  very  few  of  the  states  the  policy  of  separation 
is  still  maintained.  Law  and  equity  are  not  only  distinct  de- 
partments, but  they  are  administered  by  different  tribunals, 
substantially  according  to  the  system,  both  in  respect  to 
jurisdiction  and  procedure,  which  existed  in  England  prior 
to  the  recent  legislation.  There  is  a  court  of  general  original 
jurisdiction  at  law,  and  another  court  of  equity,  consisting 

tected  in  one  action;  provided,  that  wherever  there  is  any  variance  between 
the  rules  of  equity  and  the  rules  of  the  common  law,  in  reference  to  the 
same  matter,  the  rules  of  equitj'  shall  prevail."  It  will  be  noticed  that  this 
last  clause  is  the  same  in  effect  as  one  contained  in  the  English  Judicature 
Act,  and  this  alone  gives  the  Connecticut  system  a  superiority  over  that 
prevailing  in  the  other  American  states.  It  is  remarkable  that  the  codes 
of  all  the  other  states  have  not  been  amended  by  the  introduction  of  this  most 
admirable  provision.  Equitable  and  legal  defenses  and  counterclaims  are  also 
permitted. 

1  This  mode  of  judicial  organization  and  of  maintaining  the  two  jurisdic- 
tions with  one  tribunal  has  been  adopted  by  the  United  States  for  the  national 
judiciary,  and  by  the  following  States:  Connecticut,  Florida,  Georgia, 
Illinois,  Maine,  Maryland,  Massachusetts,  Michigan,  New  Hampshire,  Penn- 
sylvania, Rhode  Island,  Texas,  Vermont,  Virginia,  West  Virginia.  Con- 
necticut no  longer  belongs  to  this  class.  By  a  statute  of  1879  the  reformed 
procedure  was,  in  its  essential  features,  adopted:     See  aiite,  note  to  §  40. 


§  43  EQUITY    JURISPRUDENCE.  44 

of  one  or  more  chancellors,  and  the  two  are  entirely  distinct 
in  the  jDersons  of  the  judges,  and  in  the  judicial  functions 
which  they  possess.  Even  in  these  states,  however,  there  is 
generally  but  one  appellate  tribunal  of  last  resort,  which 
reviews  on  error  the  judgments  of  the  law  courts,  and  on 
appeal  the  decrees  of  the  Chancellor.^ 


SECTION  II. 

THE  NATURE  OF  EQUITY. 

ANALYSIS. 

§  43.  Importance  of  a  correct  notion  of  equity. 
§§  44,45.  Various  meanings  given  to  the  word. 
§§  46,47.  True  meaning  as  a  department  of  our  jurisprudence. 
§§  48-54.  Theories  of  the  early  chancellors  concerning  equity  as  both  supply- 
ing and  correcting  the  common  law. 
§§  55-58.  Sources    from    which    the   early   chancellors   took    their    doctrines;. 

their  notions  of  "  conscience  "  as  a  ground  of  their  authority. 
§§   59-61.  Equity  finally  established  upon  a  basis  of  .settled  principles. 

§  62.  How  the  equitable  jurisdiction  is  determined  at  the  present  day. 
§§  63-67.  Recapitulation:    Nature  of  equity  stated  in  four  propositions. 

§  43.  Importance  of  a  Correct  Notion  of  Equity. —  I  purpose^ 
in  this  section  to  ascertain  the  nature  of  equity  as  it  now 
exists  in  one  of  the  great  departments  into  which  the  law 
of  the  United  States  and  of  England  is  divided,  and  to  fix  its- 
exact  relations  with  the  other  department,  which,  by  a  most 
confusing  use  of  terms,  is  called  the  "  Law  "  or  the  '*  Com- 
mon Law."  This  inquiry  is  not  j^urely  theoretical;  it  is,  on 
the  contrary,  in  the  highest  degree  practical.  An  accurate 
conception  of  equity  is  indispensable  to  the  due  administra- 
tion of  justice.  If  a  certain  theory  of  its  nature,  which  now 
prevails  to  some  extent,  should  become  universal,  it  would 
soon  destroy  all  sense  of  certainty  and  security  which  the 
citizen  has,  and  should  have,  in  respect  to  the  existence  and 

1  This  system  exists  in  Alabama,  Delaware,  Mississippi,  New  Jersey,  Ten- 
neaeee. 


45  THE    NATURE    OF    EQUITY.  §  44 

maintenance  of  his  juridical  rights.  Since  the  combination 
of  legal  and  equitable  remedies  in  one  judicial  proceeding 
which  has  been  effected  in  many  of  the  states,  the  notion 
seems  to  have  been  revived,  somewhat  vague  and  undefined 
perhaps,  but  still  widely  diffused  among  the  legal  profes- 
sion, that  equity  is  nothing  more  or  less  than  the  power 
possessed  by  judges  —  and  even  the  duty  resting  upon 
them  —  to  decide  every  case  according  to  a  high  standard 
of  morality  and  abstract  right ;  that  is,  the  power  and  duty 
of  the  judge  to  do  justice  to  the  individual  parties  in  each 
case.  This  conception  of  equity  was  known  to  the  Roman 
jurists,  and  was  described  by  the  phrase,  Arhitrium  boni 
viri,  which  may  be  freely  translated  as  the  decision  upon  the 
facts  and  circumstances  of  a  case  which  would  be  made  by 
a  man  of  intelligence  and  of  high  moral  principle;  and  it 
w^as  undoubtedly  the  theory  in  respect  to  their  own  func- 
tions, commonly  adopted  and  acted  upon  by  the  ecclesi- 
astical chancellors  during  the  earliest  periods  of  the  English 
Court,  of  Chancery.  It  needs  no  argument  to  show  that  if' 
this  notion  should  become  universally  accepted  as  the  true 
definition  of  equity,  every  decision  would  be  a  virtual  arbi- 
tration, and  all  certainty  in  legal  rules  and  security  of  legal 
rights  would  be  lost. 

§  44.  Various  Meanings  Given  to  the  Word. —  Before  pro- 
ceeding to  examine  the  nature  of  English  and  American 
equity,  as  above  stated,  I  shall  briefly  mention  some  of  the 
meanings  which  have  been  given  to  the  word,  taken  in  its 
general  sense,  and  not  as  designating  a  particular  depart- 
ment of  the  municipal  law.  The  original  or  root  idea  of  the 
word,  as  first  used  by  the  Eoman  jurists,  universality,  and 
thence  impartiality ,  has  already  been  explained.  From  this 
fundamental  notion,  equity  has  come  to  be  employed  with 
various  special  significations.  It  has  been  apiolied  in  the 
interpretation  of  statutes,  when  a  legislative  enactment  is 
said  to  be  interpreted  equitably;  or,  as  the  expression  often 
is,  according  to  the  equity  of  the  statute.  This  takes  place 
when  the  provisions  of  a  statute,  being  perfectly  clear,  do 


§  45  EQUITY    JURISPRUDENCE.  46 

not  in  terms  embrace  a  ease  which,  in  the  opinion  of  the 
judge,  would  have  been  embraced  if  the  legislator  had  car- 
ried out  his  general  design.  The  judge,  supplying  the  de- 
fective work  of  the  legislator,  interprets  the  statute  exten- 
sively, or  according  to  its  equity,  and  treats  it  as  though  it 
actually  did  include  the  particular  case.  The  word  was 
sometimes  used  in  this  sense  by  the  Roman  jurists,  when 
applied  to  modes  of  interpretation,  and  also  by  the  earlier 
English  text-writers  and  judges ;  but  is  not  often  employed 
with  such  a  meaning  by  writers  of  the  present  day. 

§  45.  Another  signification  sometimes  given  to  equity  is 
that  of  judicial  impartiality;  the  administration  of  the  law 
according  to  its  true  spirit  and  import,  uninfluenced  by  any 
extrinsic  motives  or  circumstances;  the  application  of  the 
law  to  particular  cases,  in  conformity  with  the  special  in- 
tention or  the  general  design  of  the  legislator.^  A  third 
meaning  makes  equity  synonymous  with  natural  law  as  that 
term  is  used  by  modern  writers,  or  morality ;  so  that  it  prac- 
tically becomes  the  moral  standard  to  which  all  law  should 
conform.  It  is  in  this  sense  that  the  epithet  ''  equitable  " 
is  constantly  used,  even  at  the  present  day,  by  judges  and 
text-writers,  in  order  to  describe  certain  doctrines  and  rules 
which,  it  is  supposed,  will  tend  to  promote  justice  and  right 
in  the  relations  of  mankind,  or  between  the  litigant  parties 
in  a  particular  case.^  The  only  other  signification  which  I 
shall  mention  does  not  greatly  differ  from  the  one  last  given. 
In  that  use  of  the  term,  equity  is  the  unchangeable  system 

1  In  accordance  with  this  conception,  the  following  definitions  have  been 
given:  "The  application  of  the  statute  law  to  a  given  case,  agreeably  to  the 
specific  intention  or  the  general  design  of  the  legislator."  "/Equitas  nihil 
est  quam  bcnigna  et  humana  juris  scripti  interpretatio,  noiv  ex  verbis,  sed  a 
mente  legislaloris  facta."  (Equity  is  nothing  but  the  liberal  and  humane 
interpretation  of  the  written  law,  made,  not  according  to  its  words,  but  in 
conformity  with  the  intent  of  the  legislator.)  "  Benignius  leges  interpretandm 
sunt,  quo  voluntas  earum  conservaretur."  .(Positive  laws  ought  to  be  in- 
terpreted liberally,  so  that  their  design  will  bo  prosorvod.) 

2  It  is  wiMi  this  moaning  of  the  word  that.  Froncli  jurists  have  saidr 
"  I/rquilr  ist  Vcsprit  dc  nos  lois  " ;  and  a  Roman  jurist  said:  "^quitas 
est  honestas." 


47  THE    NATURE    OF    EQUITY.  §  4G 

of  moral  principles  to  whicli  the  law  does  or  should  con- 
form;  but  in  this  use  it  rather  describes  the  power  belong- 
ing to  the  judge  —  a  power  which  must,  of  course,  be  exer- 
cised according  to  his  own  standard  of  right  —  to  decide  the 
cases  before  him  in  accordance  with  those  principles  of 
morality,  and  so  as  to  promote  justice  between  suitors,  even 
though  in  thus  deciding  some  rule  of  positive  law  should  be 
violated  or  at  least  disregarded.  This  conception  of  equity 
regards  it,  not  as  a  system  of  juridical  principles  and  rules 
based  upon  morality,  right,  and  justice,  but  rather  as  a 
special  function  or  authority  of  the  courts  to  dispense  with 
fixed  legal  rules,  to  limit  their  generality,  or  to  supple- 
ment their  defects  in  particular  cases,  not  in  obedience  to 
any  higher  and  more  comprehensive  doctrines  of  the  same 
positive  national  jurisprudence,  but  in  obedience  to  the 
dictates  of  natural  right,  or  morality,  or  conscience.^ 

§  46.  True  Meaning  as  a  Department  of  our  Jurisprudence. — 
I  am  now  prepared  to  examine,  and  if  possible  determine, 
the  true  nature  of  equity  considered  as  an  established 
branch  of  our  American  as  well  as  of  the  English  juris- 
prudence. We  are  met  at  the  very  outset  by  numerous  defi- 
nitions and  descriptions  taken  from  old  writers  and  judges 
of  great  ability  and  high  authority,  many  of  which  are 
entirely  incorrect  and  misleading,  so  far  at  least  as  they 
apply  to  the  system  which  now  exists,  and  has  existed  for 
several  generations.  These  definitions  attribute  to  equity 
an  unbounded  discretion,  and  a  power  over  the  law  unre- 
strained by  any  rule  but  the  conscience  of  the  Chancellor, 
wholly  incompatible  with  any  certainty  or  security  of  pri- 
vate right.    For  the  purpose  of  illustrating  these  loose  and 

3  This  theory  was  known  to  the  Roman  juridical  writers;  it  was  the  notion 
constantly  maintained  by  Cicero,  who  says:  "Mquitas  est  laximentum  juris," 
and  traces  of  it  are  found  throughout  the  Digest.  It  was  universally  adopted 
by  the  clerical  chancellors  in  the  earliest  stages  of  the  chancery  jurisdiction; 
and  the  English  equity  commenced,  and  for  a  considerable  period  continued, 
its  growth  as  a  direct  result  of  this  conception:  See  2  Austin  on  Juris- 
prudence, pp.  272-280. 


§  46  EQUITY   JURISPRUDENCE.  48 

inaccurate  conceptions,  I  have  placed  in  the  foot-note  a  num- 
ber of  extracts  taken  from  the  earlier  writers.^ 

1  In  the  Doctor  and  Student  (Dial.  1,  chap.  16),  equity  is  thus  described: 
"  In  some  cases  it  is  necessary  to  leave  the  words  of  the  law,  and  to  follow 
what  reason  and  justice  requireth,  and  to  that  intent  equity  is  ordained; 
that  is  to  say,  to  temper  and  mitigate  the  rigor  of  the  law.  .  .  .  And  ho 
it  appeareth  that  equity  taketh  not  away  the  very  right,  but  only  that  that 
«eenietli  not  to  be  right  by  the  general  words  of  the  law.  .  .  .  Equity  is 
righteousness  that  considereth  all  the  particular  circumstances  of  the  deed, 
which  is  also  tempered  with  the  sweetness  of  mercy."  In  Grounds  and  Rudi- 
ments (pp.  5,  6)  it  is  said:  "As  summum  jus  sumnia  est  injuria  since  it 
cannot  consider  circumstances,  and  as  equity  takes  in  all  the  circumstances 
of  the  case,  and  judges  of  the  whole  matter  according  to  good  conscience, 
this  shows  both  the  use  and  excellency  of  equity  above  any  prescribed  law. 
.  .  .  Equity  is  that  which  is  commonly  called  equal,  just,  and  good,  and 
is  a  mitigation  and  moderation  of  the  common  law  in  some  circumstances, 
either  of  the  matter,  person,  or  time;  and  often  it  dispenseth  with  the  law 
itself.  .  .  .  The  matters  of  which  equity  holdeth  cognizance  in  its  abso- 
lute power  are  such  as  are  not  remediable  at  law;  and  of  them  the  sorts  may 
be  said  to  be  as  infinite  almost  as  the  different  affairs  conversant  in  human 
life.  .  .  .  Equity  is  so  extensive  and  various  that  every  particular  case 
in  equity  may  be  truly  said  to  stand  upon  its  own  particular  circumstances; 
and  therefore,  under  favor,  I  apprehend  precedents  not  of  that  great  use  in 
equity  as  some  would  contend,  but  that  equity  thereby  may  possibly  be  made 
too  much  a  science  for  good  conscience."  In  Finch's  Law  (p.  20)  it  is  said: 
"  The  nature  of  equity  is  to  amplify,  enlarge,  and  add  to  the  letter  of  the 
law  ";  and  in  the  treatise  called  Eunomus  (Dial.  3,  §  60)  it  was  called  "the 
jjowor  of  moderating  the  summum  jus."  Lord  Bacon  adds  the  weight  of  his 
authority  to  this  view,  saying  in  one  place :  "  Habent  similiter  Curire 
Prsetorise  potestatem  tam  subveniendi  contra  rigorem  legis,  quam  supplendi 
defectum  legis"  (the  court  of  chancery  in  like  manner  has  the  power  as  well 
of  relieving  against  the  rigor  of  the  law  as  of  supplying  its  defects)  ;  and  in 
another:  "Chancery  is  ordained  to  supply  the  law,  and  not  to  subvert  the 
law."  Lord  Kanies  states  the  same  theory  without  any  limitation  (Karnes's 
Eq.,  Introd.,  pp.  12,  15):  "It  appears  now  clearly  that  a  court  of  equity 
commences  at  the  limits  of  the  common  law  and  enforces  benevolence  where 
the  law  of  nature  makes  it  our  duty.  And  thus  a  court  of  equity,  accom- 
panying the  law  of  nature  in  its  general  refinements,  enforces  every  natural 
duly  that  is  not  provided  for  at  the  common  law.  .  .  ,  A  court  of  equity 
boldly  undertakes  to  correct  or  mitigate  the  rigor,  and  what  in  a  proper  sense 
may  be  termed  the  injustice,  of  the  common  law."  In  the  well-known  treatise 
called  Fonblanque  on  Equity,  the  author  says  (b.  1,  chap.  1,  §  3)  :  "  So 
there  will  be  a  necessity  of  having  recour.se  to  natural  principles,  that  what 
is  wanting  to  the  finite  may  be  supplied  out  of  that  which  is  infinite.  And 
this  is  properly  what  is  called  equity,  in  opposition  to  strict  law.  .  .  . 
And  thus  in  chancery  every  particular  case  stands  upon  its  own  particular 
circuniHtances ;  and  altlioiigh  the  common  law  will  not  decree  against  the 
general   rule  of  law,  yet  chancery  doth,   so  as  the  example   introduce  not  a 


49  THE   NATURE   OF    EQUITY.  §  47 

§  47.  It  is  very  certain  that  no  court  of  chancery  juris- 
diction would  at  the  present  day  consciously  and  inten- 
tionally attempt  to  correct  the  rigor  of  the  law  or  to  supply 
its  defects,  by  deciding  contrary  to  its  settled  rules,  in  any 
manner,  to  any  extent,  or  under  any  circumstances  beyond 
the  already  settled  principles  of  equity  jurisprudence.* 
Those  principles  and  doctrines  may  unquestionably  be  ex- 
tended to  new  facts  and  circumstances  as  they  arise,  which 
are  analogous  to  facts  and  circumstances  that  have  already 
been  the  subject-matter  of  judicial  decision,  but  this  process 
of  growth  is  also  carried  on  in  exactly  the  same  manner  and 
to  the  same  extent  by  the  courts  of  law.  Nor  would  a 
chancellor  at  the  present  day  assume  to  decide  the  facts  of 
a  controversy  according  to  his  own  standard  of  right  and 
justice,  independently  of  fixed  rules,—  he  would  not  attempt 
to  exercise  the  arhitrium  honi  viri;  on  the  contrary,  he  is 

general  mischief.  Every  matter,  therefore,  that  happens  inconsistent  with 
the  design  of  the  legislator,  or  is  contrary  to  natural  justice,  may  find  relief 
liere.  For  no  man  can  be  obliged  to  anything  contrary  to  the  law  of  nature; 
and  indeed,  no  man  in  his  senses  can  be  presumed  willing  to  oblige  another 
to  it.  But  if  the  law  hath  determined  a  matter  with  all  its  circumstancei^, 
equity  cannot  intermeddle."  The  same  large  view  of  equity  has  sometimes 
been  taken  by  the  earlier  judges,  but  not  to  any  considerable  extent  since 
the  Reformation.  The  following  example  will  suffice:  In  Dudley  v.  Dudley, 
Prec.  Ch.  241,  244,  Sir  John  Trevor,  M.  R.,  said:  "Now,  equity  is  no  part 
of  the  law,  but  a  moral  virtue  which  qualifies,  moderates,  and  reforms  the 
rigor,  hardness,  and  edge  of  the  law,  and  is  a  universal  truth.  It  does  also 
assist  the  law  where  it  is  defective  and  weak  in  the  constitution,  which  is 
the  life  of  the  law;  and  defends  the  law  from  crafty  evasions,  delusions,  and 
new  subtleties  invented  and  contrived  to  evade  and  delude  the  common  law, 
whereby  such  as  have  undoubted  right  are  made  remediless.  And  this  is  the 
office  of  equity,  to  protect  and  support  the  common  law  from  shifts  and  con- 
trivances against  the  justice  of  the  law.  Equity,  therefore,  does  not  destroy 
the  law,  nor  create  it,  but  assists  it."  I  shall  end  these  citations  by  a  quota- 
tion from  Chancellor  D'Aguesseau,  the  great  French  jurist  (CEuvres,  vol.  I, 
p.  138)  :  "  Premier  objet  du  legislateur,  depositaire  de  son  esprit,  compagne 
inseperable  de  la  loi,  I'equitg  ne  peut  jamais  etre  contraire  S,  la  loi  m^me. 
Tout  ce  que  blesse  cette  equite,  veritable  source  de  toutes  les  lois,  ne  resiste 
pas  moins  h,  la  justice." 

(a)  The  text  is  quoted  in  Harper  South.  840;  and  cited  in  Sell  v.  West, 

V.  Clayton,  84  Md.  356,  35  Atl.  1083.  125   Mo.   621,   46   Am.   St.   Rep.   508, 

35  L.  R.  A.  211,  57  Am.  St.  Rep.  407 ;  28  S.  W.  969. 
Henderson  v.  Hall,   134  Ala.  455,  32 

Vol.  1  —  4 


§§  48,  49  EQUITY   JURISPRUDENCE.  50 

governed  in  his  judicial  functions  by  doctrines  and  rules 
embodied  in  precedents,  and  does  not  in  this  respect  possess 
any  greater  liberty  than  the  law  judges. 

§  48.  Theories  of  the  Early  Chancellors  Concerning  Equity.— 
It  is  nevertheless  true  that  there  was  much  in  the  proceed- 
ings of  the  early  clerical  and  some  of  the  lay  chancellors 
which  furnished  a  ground  for  the  theories  given  in  the  fore- 
going note.  In  the  commencement  of  the  jurisdiction,  and 
down  to  a  time  when  the  principles  of  equity  as  they  now 
exist  had  become  established,  eveiy  decision  made  by  chan- 
cery, every  equitable  doctrine  which  it  declared,  every  equi- 
table rule  which  it  announced,  was  of  necessity  an  innova- 
tion to  a  greater  or  less  extent  upon  the  then  existing  com- 
mon law,  sometimes  supplying  defects  both  with  respect  to 
primary  rights  and  to  remedies  which  the  law  did  not  recog- 
nize, and  sometimes  invading,  disregarding,  and  overruling 
the  law  by  enforcing  rights  or  conferring  remedies  with  re- 
spect to  which  the  law  was  not  silent,  but  which  it  actually 
denied  and  refused.  The  very  growth  of  equity,  as  long  as  it 
was  in  its  formative  period,  was  from  its  essential  nature  an 
antagonism  to  the  common  law,  either  by  way  of  adding  doc- 
trines and  rules  which  the  law  simply  did  not  contain,  or  by 
way  of  creating  doctrines  and  rules  contradictory  to  those 
wliich  the  law  had  settled  and  would  have  applied  to  the 
same  facts  and  circumstances.  It  would  be  a  downright 
absurdity,  a  flat  contradiction  to  the  plainest  teachings  of 
history,  to  deny  that  the  process  of  building  up  the  system 
of  equity  involved  and  required  on  the  part  of  the  chancel- 
lors an  evasion,  disregard,  and  even  open  violation  of  many 
established  rules  of  the  common  law :  in  no  other  way  could 
the  system  of  ecjuity  jurisprudence  have  been  commenced 
and  continued  so  as  to  ai-i-ive  at  its  present  proportions.* 

§  49.  Nor  can  it  be  denied  that  the  early  clerical  and  even 
lay  cliancellors,  in  tlioir  first  processes  of  innovating  upon 

(a)  Tlic  text  is  quoted  in  Roljcrson        St.    Rep.    828,    59    L.    R.    A.    478,    by 
V.    Rochester    Foldiiif,'    Box    Co.,    171        Parker,  C.  J. 
N.  Y.  ryM,  540,  <54  N.  10.  442,  HI)  Am. 


51  THE    NATURE    OF    EQUITY.  §  SO-- 

the  law,  and  laying  the  foundations  of  equity,  were  con- 
stantly appealing  to  and  governed  by  the  eternal  principles - 
of  absolute  right,  of  a  lofty  Christian  morality;  that  in  these  • 
principles  they  sought  and  found  the  materials  for  their  de- 
cisions ;  that  they  were  ever  guided  in  their  work  by  Con- 
science, not  by  what  has  since  been  aptly  termed  the  civil  or 
judicial  conscience  of  the  court,  but  by  their  own  individual 
consciences,  by  their  moral  sense  apprehending  what  is 
right  and  wrong,  by  their  own  conceptions  of  bona  fides. 
The  very  ground  of  the  delegated  authority  required  them 
to  do  so,  and  the  function  which  they  possessed  and  exer- 
cised was  literally  the  arhitriiim  boni  viri.  In  this  manner 
the  first  precedents  were  made,  and  undoubtedly  for  a  con- 
siderable space  of  time  the  decisions  in  chancery  varied  and 
fluctuated  according  to  the  personal  capacity  and  high  sense 
of  right  and  justice  possessed  by  individual  chancellors.  In 
the  lapse  of  time,  however,  the  precedents  had  multiplied, 
and  from  the  universal  conservative  tendency  of  courts  to 
be  controlled  by  what  has  been  already  decided,  a  system  of 
doctrines  had  developed  and  assumed  a  comprehensive 
shape;  and  finally,  when  it  had  attained  a  reasonable  com- 
pleteness with  respect  to  fundamental  principles  and  gen- 
eral rules,  this  accumulation  became  the  storehouse  whence 
the  chancellors  obtained  the  material  for  their  decisions,  and 
both  guided  and  restrained  their  judicial  action.  When  this 
time  arrived,  all  assumption  that  the  Chancellor  was  to  be 
governed  by  his  own  standard  and  conception  of  natural 
justice  disappeared  from  the  court  of  equity,  and  individual 
conscience  was  no  longer  the  motive  power  in  that  tribunal. 
The  accuracy  of  this  general  account  will  appear  from  a 
brief  review  of  what  the  early  chancellors  actually  did  dur- 
ing the  formative  period  of  their  jurisdiction,  and  of  the 
principles  which  they  adopted  in  the  prosecution  of  their 
reformatory  work. 

§  50.  In  the  original  delegation  of  general  authority  by 
the  Crown  to  the  Chancellor,  over  matters  falling  under 
the  King's  judicial  prerogative  of  grace,  such  authority 


§  51  EQUITY    JURISPKUDENCE.  52 

was  to  be  exercised  according  to  Conscience,  Equity,  Good 
Paith,  and  Honesty.  It  was  undoubtedly  a  maxim,  even  in 
the  earliest  times,  that  the  equitable  jurisdiction  of  chancery 
only  extended  to  such  matters  as  ivere  not  remediable  by 
the  common  law.  At  the  same  time  great  latitude  was  used 
in  determining  what  matters  were  not  thus  remediable.  The 
chancellors  therefore  exercised  a  jurisdiction  which  was 
supplementary  to  that  of  the  law  courts,  and  to  this  there 
was  never  any  real  opposition.  At  the  same  time  they  exer- 
cised a  jurisdiction  which  was  corrective  of  the  law,  and  this 
was  undoubtedly  the  most  important  part  of  their  functions. 
It  is  absolutely  certain  from  all  the  existing  records,  and 
from  the  result  itself  of  their  work,  that  they  did  not  refrain 
from  deciding  any  particular  case,  according  to  their  views 
of  equity  and  good  conscience,  merely  because  the  doctrine 
which  they  followed  or  established  in  making  the  decision 
was  inconsistent  with  the  i*ule  of  law  applicable  to  the  same 
facts,  nor  because  the  law  had  deliberately  and  intentionally 
refused  to  acknowledge  the  existence  of  a  primary  right, 
or  to  give  a  remedy  under  those  facts  and  circumstances.^ 
That  this  corrective  authority  was  possessed  by  the  chancel- 
lors, and  freely  exercised  by  them  in  the  periods  of  which 
I  am  speaking,  is  recognized  by  the  ancient  writers.^ 

§  51.  How  far  the  early  chancellors  went  in  recognizing 
and  upholding  primary  rights  and  granting  remedies,  which 
were  not  only  overlooked,  but  were  expressly  denied,  re- 
fused, and  prohibited  by  positive  and  well-settled  rules  of 

1  Thus  in  a  ease  before  Chancellor  Morton,  Archbishop  of  Canterbury,  in 
the  reipn  of  Henry  VII.,  it  was  argued  tliat  he  should  grant  no  relief,  be- 
■cause  upon  the  facts  in  the  case  the  common  law  admitted  no  right  and  gave 
no  remedy.  The  Chancellor  replied  to  this  argument:  "  It  is  so  in  all  cases 
where  there  is  no  remedy  at  the  common  law  and  no  right,  and  yet  a  good 
remedy  in  equity."  "  Et  per  ceo  nul  remedy  per  comen  ley,  ergo  ne  per 
consciens,  issit  est  in  tout  cases  nul  remedy  per  comen  ley  ne  nul  droit  et 
uncore  hon  remedy  per  conscious  ".'    Year-Book,  7  Hen.  VII.,  fol.  12. 

2  Thus  in  Doctor  and  Student,  which  was  written  in  the  early  part  of  the 
reign  of  Henry  VIII.,  it  is  stated:  "Conscience  (i.  e.,  equity)  never  re- 
aistclh  the  law  nor  addeth  to  it,  hut  only  when  the  law  is  directly  in  itself 
against  the  law  of  (Jod  or  law  of  reason." 


53  THE    NATUKE    OF    EQUITY.  §  51 

the  conunon  law,  is  seen  from  a  brief  summary  of  a  few 
instances  in  whicli  such  equitable  doctrines  were  established 
in  contradiction  to  legal  dogmas.  One  executor  or  joint 
tenant  might  sue  his  coexecutor  or  cotenant  in  the  Court  of 
Chancery  in  respect  to  their  joint  interests,  although  for- 
bidden to  do  so  by  the  law.""  When  an  obligee,  by  reason  of 
loss  or  other  accident,  could  not  produce  the  bond,  he  was 
prohibited  by  an  express  rule  of  the  law  from  maintaining 
an  action  upon  it ;  but  the  Court  of  Chancery,  upon  proof  of 
such  facts,  would  grant  him  full  relief,  by  enforcing  the 
obligation.  Conversely,  if  an  obligor  or  other  debtor  upon 
a  sealed  instrument  had  paid  the  debt  in  full,  but  had  neg- 
lected to  take  a  release  or  a  surrender  of  the  bond,  the  law 
held  him  still  liable,  and  gave  him  no  defense  in  an  action 
brought  to  recover  payment  of  the  debt  a  second  time ;  but 
chancery  admitted  and  enforced  this  conscientious  defense 
by  restraining  the  creditor  from  prosecuting  his  legal 
action.  Again,  the  Court  of  Chancery,  acting  upon  its 
equitable  principles,  relieved  parties  in  many  instances 
from  forfeitures  which  had  been  clearly  incurred  accord- 
ing to  express  rules  of  the  law,  and  which  courts  of  law  still 
enforced  according  to  the  strictest  letter  of  the  provisions 
from  whicli  they  resulted.  Notwithstanding  statutes  which 
prohibited  the  Court  of  Chancery  from  reviewing  judg- 
ments rendered  by  the  courts  of  law,  the  Chancellor  gave 
relief,  where  it  was  demanded  by  equity  and  good  con- 
science, against  the  operation  of  such  judgments.  He 
avoided  the  express  prohibitory  language  of  the  statutes 
by  not  assuming  to  act  directly  upon  the  judgment  itself, 
but  upon  the  parties  personally,  by  restraining  the  one  who 
had  recovered  the  judgment  from  taking  or  prosecuting 
any  measures  for  its  enforcement,  and  even  by  compelling 
him  to  restore  the  property  which  he  had  acquired  by  its 
means.  There  is  no  higher  example  of  the  equity  juris- 
diction than  this,  nor  one  which  more  directly  interferes 

(a)  The  text  is  cited  in  Peterson  v.  Vanderburgh,   77  Minn.  218,   77   Am. 
St  Rep.  671,  79  N.  W.  828. 


§  52  EQUITY    JURISPEUDENCE.  54 

with  the  administration  of  the  law,  since  the  legal  right  con- 
troverted and  overthrown  by  chancery  no  longer  existed  in 
the  form  of  an  abstract  rule,  but  had  been  established  in  a 
concrete  form  as  the  right  existing  between  the  parties. 

§  52.  In  another  class  of  cases,  notwithstanding  the  gen- 
'eral  maxim  that  chancery  should  only  have  jurisdiction  of 
such  matters  as  were  not  remediable  by  the  common  law, 
the  Chancellor  interfered,  and  extended  his  authority  over 
facts  and  circumstances  for  which  a  legal  remedy  ivas  pro- 
vided, and  gave  a  different  and  more  efficient  remedy  wholly 
unknown  to  the  common  law.  The  equitable  remedy  of 
specific  performance  of  contracts,  although  the  law  gave 
the  remedy  of  damages,  is  an  illustration  of  this  class.  The 
whole  doctrine  of  equity  concerning  uses,  and  afterwards 
concerning  trusts,  exhibits  in  the  clearest  light  the 
action  of  the  Chancellor,  not  only  in  supplementing 
but  in  evading  and  contradicting  legal  rules  of  the 
most  positive  and  mandatory  character.  An  estate  was 
recognized  and  treated  as  the  real,  essential  interest,  which 
the  law  ignored ;  an  owner  was  protected,  and  his  rights  of 
property  were  enforced,  whom  the  law  declared  not  to  be 
the  owner;  and  as  a  consequence,  the  feudal  dogmas,  the 
feudal  incidents  of  landed  proprietorship,  and  the  right  of 
the  feudal  lords,  all  of  which  the  law  upheld,  were  over- 
ruled and  destroyed.  Still  another  most  remarkable  illus- 
tration of  the  extent  and  manner  in  which  the  Court  of 
Chancery  invaded  the  rules  and  contradicted  the  policy  of 
the  common  law  was  exhibited  by  its  doctrine  concerning 
the  separate  estate  of  married  women,  and  their  power  to 
deal  therewith  as  though  they  were  unmarried.  Nothing 
was  more  diametrically  opposed  to  the  principles  of  the 
ancient  common  law  than  this  capacity  to  be  a  separate 
proprietor   conrcri-ed    upon    the    wife;^    and   no    equitable 

1  This  equitable  doctrin(!  not  only  interfered  with  the  legal  rules  as  to 
property:  it  contradicted  one  of  the  principles  which  the  common  law  re- 
garded as  the  foundation  of  society, —  the  unity  of  the  family  produced  by  the 
abHolute  headHhij)  of  the  liUHband.     Flcta    (b.   iii.,  chap.   3)    expressly  states 


55  THE  NATURE  OF  EQUITY.  §  53 

doctrine  perhaps  interfered  with  a  greater  number  of  legal 
rules  concerning  the  status  of  marriage,  and  the  proprietary 
rights  of  the  husband  which  it  created.  The  foregoing 
instances,  which  have  been  selected  merely  as  examples, 
show  beyond  all  possible  doubt  that  the  jurisdiction  of 
equity,  while  passing  through  its  period  of  growth,  was 
constantly  exercised  in  relaxing,  contradicting,  and  defeat- 
ing legal  rules  which  were  deemed  too  harsh,  unjust,  and 
unconscientious  in  their  practical  operation,  as  well  as  in 
supplying  omissions,  and  granting  remedies  which  the  law 
courts  were  unable  to  administer. 

§  53.  While  the  early  chancellors  did  much,  they  stopped 
very  far  short  of  consummating  the  work  of  reform  by  ey- 
tending  it  to  the  entire  body  of  the  common  law.  They 
left  untouched,  in  full  force  and  operation,  a  great  number 
of  legal  rules  which  were  certainly  as  harsh,  unjust,  and 
unconscientious  as  any  of  those  which  they  did  attack;  and 
their  successors  upon  the  chancery  bench  have  never 
assumed  to  complete  what  they  left  unfinished.  That  task 
has  since  been  accomplished,  if  at  all,  either  by  the  legisla- 
ture, or  by  the  common-law  courts  themselves.  Among 
these  legal  rules  with  which  equity  did  not  interfere,  the 
following  may  be  mentioned  as  illustrations :  The  doctrine 
by  which  the  lands  of  a  debtor  were  generally  exempted 
from  all  liability  for  his  simple  contract  debts  ;^  the  entire 
doctrine  of  collateral  warranty,  which  was  confessedly  most 
unjust  and  harsh  in  its  operation,  and  resting  wholly  upon 
that  kind  of  verbal  reasoning  which  really  had  no  meaning  ;- 
and  in  fact,  most  of  the  particular  rules  concerning  real 
estate,  which  had  been  logically  derived  by  the  courts  of 

the  doctrine  that  conveyance  to  a  stranger  for  the  benefit  of  a  married  woraan 
ia  void  as  being  against  the  policy  of  the  law. 

1  3  Black.  Com.,  p.  430. 

2  Lord  Cowper  said  of  this  doctrine,  in  Earl  of  Bath  v.  Sherwin,  10  Mod.  4 : 
"A  collateral  warranty  was  certainly  one  of  the  harshest  and  most  cruel  parts 
of  the  common  law,  because  there  was  no  such  pretended  recompense  (as  in 
the  case  of  a  lineal  warranty)  ;  yet  I  do  not  find  that  the  court  (of  chancery) 
■ever  gave  satisfaction." 


§  54  EQUITY    JURISPRUDENCE.  56 

law  from  the  feudal  institutions  and  customs.  There  might, 
perhaps,  have  been  a  suflicient  reason  for  leaving  this  latter 
mass  of  rules,  as  such,  untouched.  The  introduction  of  uses, 
and  afterwards  of  trusts,  and  the  invention  of  the  married 
woman's  separate  estate,  withdrew  the  greater  part  of  the 
land,  so  far  as  its  actual  enjoyment  and  control  were  con- 
cerned, from  the  operation  of  the  common-law  dogmas,  and 
placed  it  under  the  domain  of  equity;  and  as  the  Court  of 
Chancery  had  an  exclusive  jurisdiction  over  these  new 
species  of  estates,  and  treated  them  as  the  true  ownerships, 
and  in  dealing  with  them  disregarded  the  most  objectionable 
of  the  feudal  incidents,  the  chancellors  probably  thought 
that  these  rules  of  the  common  law  had  been  practically 
abrogated,  or  at  least  evaded  en  masse,  and  that  there  was 
therefore  no  necessity  for  any  further  attack  upon  them  in 
detail. 

§  54.  Sir  William  Blackstone,  citing  these  and  some  other 
instances  in  which  the  Court  of  Chancery  refrained  from 
interfering  with  legal  doctrines,  and  using  them  as  the  basis 
of  his  argument,  goes  to  the  extent  of  denying  that  equity 
has  or  ever  had  any  power  to  correct  the  common  law  or  to 
abate   its   rigor.^     This   is   one   example   among  many  of 

1.3  Black.  Com.,  p.  430.  His  language  is:  "It  is  said  that  it  is  the 
business  of  a  court  of  equity  in  England  to  abate  tlie  rigor  of  the  common 
law.  But  no  such  power  is  contended  for.  Hard  was  the  case  of  a  bond  cred- 
itor whose  debtor  devised  away  his  real  estate;  rigorous  and  unjust  the  rule 
which  put  the  devisee  in  a  better  condition  than  the  heir;  yet  a  court  of 
equity  had  no  power  to  interfere.  Hard  is  the  common  law  still  subsisting 
that  land  devised  or  descending  to  the  hoir  should  not  be  liable  to  simple 
contract  debts  of  the  ancestor  or  devisor,  although  the  money  was  laid  out  in 
the  purchase  of  the  very  land ;  and  that  the  father  shall  never  immediately 
succeed  as  heir  to  the  real  estate  of  the  son.  But  a  court  of  equity  can  give 
no  relief,  though  in  both  these  instances  the  artificial  reason  of  the  law, 
arising  from  feudal  principles,  has  long  since  ceased."  The  statement  in  this 
quotation,  that  "  wiuity  had  no  power  to  interfei'e,"  is  merely  a  gratuitous 
asHuniption;  it  certainly  li.id  llio  same  power  to  interfere  which  it  possessed 
and  exercised  in  tlie  ciim'  of  ;iii  obligor  who  had  paid  the  debt  secured  by  his 
bond  but  had  neglected  to  take  a  release.  Tiie  most  that  can  be  truthfully 
paid  is,  that  "  erpiily  did  not  interfere."  Blackstone.  being  purely  a  coininon- 
law  lawyer,  bail  lit  lie  Uiiowlcdgc  of  equity,  and  liis  authority  concerning  its 
prinr-iplcs  iind  jurisdiction  was  never  great. 


57  THE    NATURE    OF    EQUITY.  §  55 

Blackstone's  utter  inability  to  comprehend  the  real  spirit 
and  workings  of  the  English  law.  That  equity  did  to  a  large 
extent  interfere  with  and  prevent  the  practical  operation  of 
legal  rules,  and  did  thus  furnish  to  suitors  a  corrective  of 
the  harshness  and  injustice  of  the  common  law,  history  and 
the  very  existing  system  incontestably  show;  and  that  the 
chancellors,  from  motives  of  policy  or  otherwise,  refrained 
from  exercising  their  reformatory  function  in  certain  in- 
stances, is  not,  in  the  face  of  the  historical  facts,  any  argu- 
ment against  the  existence  of  the  power.  And  even  in  the 
present  condition  of  equity  as  an  established  department  of 
the  national  jurisprudence,  whenever  a  court  determines 
the  rights  of  parties  by  enforcing  an  equitable  doctrine 
which  differs  from  and  perhaps  conflicts  with  the  legal  rule 
applicable  to  the  same  facts,  such  court  does  still,  in  very 
truth,  exercise  a  corrective  function,  and  wield  an  authority 
by  which  it  relieves  the  rigor  and  often  the  injustice  of  the 
common  law.  It  is  undoubtedly  true  that  a  court  of  equity 
no  longer  inaugurates  new  attacks  upon  legal  doctrines, 
and  confines  itself  to  the  application  of  principles  already 
settled ;  but  it  is  none  the  less  true  that  a  large  part  of  the 
equity  which  is  daily  administered  consists  in  doctrines 
which  modify  and  contradict  as  well  as  supplement  the 
rules  of  the  law.^ 

§  55.  Sources  from  Which  the  Early  Chancellors  Took  Their 
Doctrines. —  Having  thus  described  the  action  of  the  early 
chancellors  in  the  formative  period  of  their  jurisdiction,  I 
shall  now  endeavor  to  explain  the  motives  by  which  they 
were  governed,  and  the  speculative  sources  whence  they 
drew  their  principles  and  constructed  their  doctrines.  They 
were  directed  in  their  original  delegation  of  authority,  and 
they  assumed,  in  compfiance  with  the  direction,  to  proceed 
according  to  Equity  and  Conscience.  There  can  be  no 
doubt  that  they  took  their  conception  of  equity  from  the 

2  See  dictum  of  Sir  George  Jessel,  ]M.  R.,  in  Johnson  v.   Crook,  L.  R.   12 
Ch.  Div.  639,  649,  quoted  post,  in  note  to  §  62. 


§  56  EQUITY    JURISPRUDENCE.  58 

general  description  of  it  given  by  the  Roman  jurists, 
iinderstood  and  interpreted,  hoivever,  according  to  their 
own  theory  of  morality  as  a  Divine  laiv,  and  also  borrowed 
many  of  the  particular  rules  by  which  this  equity  was  ap- 
plied from  the  Roman  law.  As  the  great  Roman  jurists, 
disciples  of  the  Stoic  philosophy,  conceived  of  ^quitas  as 
synonymous  with  the  *'  natural  law,"  or  "  lex  naturce,"  the 
governing  spirit  or  reason  of  the  universe  (ratio  mitndi), 
and  regarded  it  as  a  constituent  part  of  their  national 
system,  so  the  clerical  chancellors,  interpreting  the  lan- 
guage of  the  Roman  jurists  according  to  their  own  Christian 
philosophy,  conceived  of  equity  as  synonymous  with  the 
Divine  law  of  morality,  and  therefore  as  compulsory  upon 
human  tribunals  in  their  work  of  adjudicating  upon  the  civil 
rights  and  regulating  the  personal  conduct  and  relations  of 
individuals.  In  this  view,  the  authority  and  duty  to  decide 
according  to  equity  (as  distinguished  from  conscience) 
seems  to  have  embraced  all  those  cases  in  which  a  part}', 
without  having  committed  any  act  which  would  be  con- 
sidered as  contrary  to  conscience  or  good  faith,  might  yet, 
by  the  rigorous  provisions  of  the  positive  law,  or  by  its 
silence, —  the  particular  case  not  having  been  provided  for 
at  all, —  have  obtained  an  advantage  which  it  was  contrary 
to  the  principles  of  equity  that  he  should  be  permitted  to 
•enforce  or  to  retain.  In  such  cases,  the  general  principles 
of  equity,  which  were  found  in  the  rules  of  morality,  and 
were  superior  to  all  merely  human  law,  were  invoked.  If 
the  rigor  of  the  law  favored  the  position  of  a  party  who  had 
committed  any  unconscientious  act  or  breach  of  good  faith, 
the  one  who  had  suffered  thereby  would  be  relieved  under 
tlic  head  of  "  conscience  "  as  well  as  of  ^'  equity."^ 

§  56.  The  conception  of  "  Conscience  "  as  an  element  in 
determining  jural  relations  was  wholly  due  to  the  clerical 
courts.  In  its  i)ractical  operation  and  results,  however, 
conscience,  considered  as  a  source  of  the  equity  jurisdic- 

1  Sco  1  Spciicc's  1-;(|.  Jur.,  pp.  412,  413. 


59  THE    NATURE    OF    EQUITY.  §  57 

tion,  was  synonymous  with  the  "good  faith,"  "  bona  fides,'* 
which  forms  so  important  a  feature  in  the  later  and  philo- 
sophical Roman  jurisprudence.  It  embraced  all  those  obli- 
gations which  rested  upon  a  person  who,  from  the  circum- 
stances in  which  he  was  placed  towards  another  and  the 
relations  subsisting  between  them,  was  bound  to  exercise 
good  faith  in  his  conduct  and  dealings  with  that  other  per- 
son. Under  the  head  of  conscience  as  thus  understood,  a 
wide  field  of  jurisdiction  was  opened,  which  included  all 
departures  from  honesty  and  uprightness.^ 

§  57.  The  question  is  naturally  suggested,  whether  this 
^*  conscience  "  was  interpreted  as  the  personal  conscience 
of  the  individual  chancellor,  or  whether  it  was  a  kind  of 
judicial  conscience,  limited  by  and  acting  according  to 
definite  rules,  and  constituting  a  fixed  and  common  stand- 
ard of  right  recognized  and  followed  by  all  the  equity 
judges.  Beyond  a  doubt,  during  the  infancy  of  the  juris- 
diction, the  former  of  these  conceptions  was  the  prevailing 
one,  and  each  Chancellor  was  governed  in  his  judicial  work 
l)y  his  own  notions  of  right,  good  faith,  and  obligation,  by 
his  own  interpretation  of  the  Divine  code  of  morality. 
Even  during  the  reigns  of  Henry  VIII.  and  of  Elizabeth, 
some  of  the  chancellors  seem  to  have  taken  a  view  of  their 
authority  which  freed  them  from  the  restraints  of  precedent 
and  even  of  principle,  and  enabled  them  to  decide  according 
to  their  private  standard  of  right.  It  was  this  mistaken 
theory,  so  satisfying  to  an  ambitious  and  self-reliant  judge, 
but  so  dangerous  to  the  equable  and  certain  administra- 
tion of  justice,  which  provoked  the  sarcastic  criticism  of 
Selden  so  often  quoted,  and  so  often  applied,  in  complete 
ignorance  either  of  the  subject  or  the  occasion,  to  the  equity 
jurisdiction  in  general.^     After  the  period  of  infancy  was 

§  56,  1  See  1  Spence's  Eq.  Jur.,  p.  411. 

§  57,  1  Table  Talk,  tit.  Equity :  '"  Equity  is  a  roguish  thing.  For  law  we 
have  a  measure,  and  know  what  we  trust  to.  Equity  is  according  to  the  con- 
science of  him  that  is  Chancellor  ;  and  as  that  is  larger  or  narrower,  so  is  equity. 
'T  is  all  one  as  if  they  should  make  his  foot  the  standard  for  the  measure 


§  58  EQUITY    JURISPRUDENCE.  60' 

passed,  and  an  orderly  system  of  equitable  principles, 
doctrines,  and  rules  began  to  be  developed  out  of  the  in- 
creasing mass  of  precedents,  tbis  theory  of  a  personal  con- 
science was  abandoned;  and  the  "  conscience  "  which 
is  an  element  of  the  equitable  jurisdiction  came  to  be 
regarded,  and  has  so  continued  to  the  present  day,  as 
a  metaphorical  term,  designating  the  common  stand- 
ard of  civil  right  and  expediency  combined,  based  upon 
general  principles  and  limited  by  established  doctrines,  to 
which  the  court  appeals,  and  by  which  it  tests  the  conduct 
and  rights  of  suitors, —  a  juridical  and  not  a  personal  con- 
science.""  This  theory  was  at  length  announced  by  Lord 
Nottingham  as  the  one  which  regulated  the  equity  jurisdic- 
tio:p.:  "  With  such  a  conscience  as  is  only  naturalis  and  m- 
terna,  this  court  has  nothing  to  do ;  the  conscience  by  which 
I  am  to  proceed  is  merely  civilis  and  politica,  and  tied  to 
certain  measures. ' ' " 

§  58.  After  "  conscience  "  became  thus  defined  as  a  com- 
mon civil  standard,  it  was  practically  the  same  as  ' '  equity ; " 
the  distinctions  between  them  had  disappeared,  and  both 
terms  were  and  have  since  been  used  interchangeably. 
From  the  time  of  Henry  VI.,  precedents  of  decisions  made 
in  the  Court  of  Chancery  were  recorded  in  the  Year-Books, 
and  special  collections  of  them  were  made  in  the  reigns  of 
Elizabeth,  James  I.,  and  Charles  T.  By  the  time  of  Charles 
I.  the  number  of  precedents  had  so  accumulated,  either  in 
published  or  in  private  collections,  or  handed  down  tradi- 
tionally, that  they  substantially  contained  the  entire  prin- 
ciples of  equity,  and  the  chancellors  yielded  almost  wholly  to 

\v(!  fall  a  Chancrllor's  foot.  What  an  iincertain  measure  would  this  be!  One 
Cliancf'Ilor  has  a  long  foot,  another  a  short  foot,  a  third  an  indifferent  foot. 
'T  is  the  same  thinj,'  in  tlie  Chancellor's  conscience."  Mr.  Spence  very  truly 
remarks:  "  Selden,  hotter  than  any  man  living,  perhaps,  knew  what  equity 
really  was." 

2f'ook   V.    Fountain,  .'{   Swansi.   ns'),   IJOO    (l(i7(>). 

(a.)  The    text    is    quoted    in    Rober-        Am.    St.   Rep.   828,   8.']2,   5'J   L.   R.   A. 
Hon    V.    Rochester    Folding    Box    Co.,       478,  by  Parker,  C.  J. 
171   N.  Y.   ',m,  .040,  fi4  N.  E.  442,  80 


'61  THE    NATURE    OF    EQUITY.  §  59 

their  guidance.  In  fact,  they  sometimes  fell  into  the  mis- 
take of  refusing  relief  in  a  case  plainly  within  the  scope  of 
established  principles,  because  there  was  no  precedent 
which  exactly  squared  with  the  facts  in  controversy. 

§  59.  Equity  Finally  Established  upon  a  Basis  of  Settled 
Principles. —  The  result  of  this  review  is  very  clear,  and 
enables  us  to  define  with  accuracy  the  general  character  of 
the  English  and  American  equity.  After  its  growth  had 
proceeded  so  far  that  its  important  principles  were  all  de- 
veloped, equity  became  a  system  of  x^ositive  jurisprudence, 
peculiar  indeed,  and  differing  from  the  common  law,  but 
founded  upon  and  contained  in  the  mass  of  cases  already 
decided.  The  Chancellor  was  no  longer  influenced  by  his 
own  conscience,  or  governed  by  his  own  interpretation  of 
the  Divine  morality.  He  sought  for  the  doctrines  of  equity 
as  they  had  already  been  promulgated,  and  applied  them  to 
each  case  wliich  came  before  him.  No  doubt  (and  this  is  a 
point  of  the  highest  importance)  the  system  was,  and  is, 
much  more  elastic  and  capable  of  expansion  and  extension  to 
new  cases  than  the  common  law.  Its  very  central  principles, 
its  foundation  upon  the  eternal  verities  of  right  and  justice, 
its  resting  upon  the  truths  of  morality  rather  than  upon 
arbitrary  customs  and  rigid  dogmas,  necessarily  gave  it 
this  character  of  flexibility,  and  permitted  its  doctrines  to 
be  enlarged  so  as  to  embrace  new  cases  as  they  constantly 
arose.  It  has,  tlierefore,  as  an  essential  part  of  its  nature, 
a  capacity  of  orderly  and  regular  growth, —  a  growth  not 
arbitrary,  according  to  the  will  of  individual  judges,  but 
in  the  direction  of  its  already  settled  principles.  It  is 
ever  reaching  out  and  expanding  its  doctrines  so  as  to 
«over  new  facts  and  relations,  but  still  without  any  break 
or  change  in  the  principles  or  doctrines  themselves.  It 
is  certainly,  therefore,  a  mistaken  theory  which  is  main- 
tained by  many  writers  like  Blackstone,  and  even  by  those 
of  a  later  day  and  higher  authority,  and  which  represents 
the  English  and  American  equity  as  entirely  an  artificial 
system,   embodied   wholly   in   unyielding  precedents,   and 


§  60  EQUITY    JURISPRUDENCE.  62" 

incapable  of  further  development.  It  is  true  that  there 
can  be  no  more  capricious  enlargement  according  to  the 
will  of  individual  chancellors;  but  the  principles  of  right, 
justice,  and  morality,  which  were  originally  adopted,  and 
have  ever  since  remained,  as  the  central  forces  of  equity, 
gave  it  a  necessary  and  continuous  power  of  orderly  ex- 
pansion, which  cannot  be  lost  until  these  truths  themselves 
are  forgotten,  and  banished  from  the  courts  of  chancery.^ 
§  60.  The  general  language  of  some  writers,  and  par- 
ticularly of  Blackstone,  presents  an  erroneous  theory  as  to 
the  office  of  precedents  in  equity,  and  if  followed,  would 
check  and  abridge  the  beneficent  operation  of  its  juris- 
diction. The  true  function  of  precedents  is  that  of  illus- 
trating principles;  they  are  examples  of  the  manner  and 
extent  to  which  principles  have  been  applied;   they  are 

1  The  doctrine  of  the  text  was  clearly  stated  by  Lord  Redesdale,  in  Bond 
V.  Hopkins,  1  Schoales  &  L.  413,  429:  "There  are  certain  principles  on  which 
courts  of  equity  act,  which  are  very  well  settled.  The  cases  which  occur  are 
various,  but  they  are  decided  on  fixed  principles.  Courts  of  equity  have  in 
this  respect  no  more  discretionary  power  than  courts  of  common  law.  They 
decide  nev.'  cases  as  they  arise,  by  the  principles  on  which  former  cases  have 
been  decided,  and  may  thus  illustrate  or  enlarge  the  operation  of  these  prin- 
ciples, but  the  principles  are  as  fixed  and  certain  as  the  principles  on  which 
the  courts  of  common  law  proceed."  In  Gee  v.  Pritchard,  2  Swanst.  402,  414, 
Lord  Eldon  states  the  same  theory :  "  The  doctrines  of  this  court  ought  to  be 
as  well  settled  and  made  as  uniform  almost  as  those  of  the  common  law, 
laying  down  fixed  principles,  hut  taking  care  that  they  are  to  he  applied  ac- 
cording to  the  circumstances  of  each  particular  case."  The  old  case  of  Fry 
v.  Porter,  1  Mod.  300,  307  (22  Car.  II.),  exhibits  the  strange  notions  con- 
cerning equity  then  held  by  the  common-law  judges.  On  the  hearing,  Chief 
Justice  Kcylinge,  Chief  Justice  Vaughan,  and  Chief  Baron  Hale  were  called 
in  to  assist.  During  the  argument  C.  J.  Kej'linge  cited  an  old  case;  at  which 
C.  J.  Vaughan  said :  "  I  wonder  to  hear  of  citing  precedents  in  matter  of 
fquity,  for  if  there  be  equity  in  a  case,  that  equity  is  a  universal  truth,  and 
there  can  bo  no  precedent  in  it,  so  that  in  any  precedent  that  can  be  pro- 
duced, if  it  be  the  same  with  this  case,  the  reason  and  eciuity  is  the  same  in 
itself;  and  if  the  precedent  be  not  the  same  case  with  this,  it  is  not  to  be 
cited."  To  this  Ix)r<l  Keeper  Bridgman  replied:  "Certainly,  precedents  are 
very  necessary  and  useful  to  us,  for  in  them  we  may  find  the  reasons  of  the 
equity  to  guide  us ;  and  besides,  the  authority  of  those  who  made  them  is 
much  to  be  regarded.  We  shall  suppose  that  they  did  it  upon  great  considera- 
tion and  weighing  of  the  matter,  and  it  would  be  very  strange  and  very  ill  if 
we  should  dJHliirb  and  set  aside  what  has  been  the  course  for  a  long  series  of 
time  and  ages." 


63  THE    NATUKE    OF    EQUITY.  §  60' 

the  landmarks  by  which  the  court  determines  the  course 
and  direction  in  which  principles  have  been  carried.  But 
with  all  this  guiding,  limiting,  and  restraining  efficacy  of 
prior  decisions,  the  Chancellor  always  has  had,  and  al- 
ways must  have,  a  certain  power  and  freedom  of  action, 
not  possessed  by  the  courts  of  law,  of  adapting  the  doc- 
trines which  he  administers.  He  can  extend  those  doc- 
trines to  new  relations,  and  shape  his  remedies  to  new 
circumstances,  if  the  relations  and  circumstances  come 
within  the  principles  of  equity,  where  a  court  of  law  in 
analogous  cases  would  be  powerless  to  give  any  relief.  In 
fact,  there  is  no  limit  to  the  various  forms  and  kinds  of 
specific  remedy  which  he  may  grant,  adapted  to  novel 
conditions  of  right  and  obligation,  which  are  constantly 
arising  from  the  movements  of  society.  While  it  must 
be  admitted  that  the  broad  and  fruitful  principles  of  equity 
have  been  established,  and  cannot  be  changed  by  any 
judicial  action,  still  it  should  never  be  forgotten  that 
these  principles,  based  as  they  are  upon  a  Divine  morality, 
possess  an  inherent  vitality  and  a  capacity  of  expansion, 
so  as  ever  to  meet  the  wants  of  a  x^rogressive  civilization. 
Lord  Hardwicke,  who  was,  I  think,  the  greatest  of  the 
English  chancery  judges,  and  who,  far  more  than  Lord 
Eldon,  was  penetrated  by  the  genius  of  equity,  indicated 
the  true  theory  in  a  letter  to  Lord  Kames :  ' '  Some  gen- 
eral rules  there  ought  to  be,  for  otherwise  the  great  incon- 
venience of  jus  vagiim  et  incertum  will  follow.  And  yet 
the  Prastor  [Chancellor]  must  not  be  so  absolutely  and  in- 
variably bound  by  them  as  the  judges  are  by  the  rules  of 
the  common  law.  For  if  he  were  so  bound,  the  consequence 
would  follow  that  he  must  sometimes  pronounce  decrees 
which  would  be  materially  unjust,  since  no  rule  can  be 
equally  just  in  the  application  to  a  whole  class  of  cases 
that  are  far  from  being  the  same  in  every  circumstance.^ 

1  Parke's  History  of  Chancery,  pp.  501,  506.  Judge  Story  severely  criti- 
cises this  language,  pronounces  it  very  loosely  said,  and  virtually  repudiates 
it.     But  with   all   deference   to   Judge    Story,   these   few   sentences,   although 


§  61  EQUITY    JURISPRUDENCE.  64 

§  61.  I  have  thus  far  described  the  growth  of  equity,  and 
the  shape  which  it  finally  assumed  in  the  English  Munici- 
pal Law,  and  as  it  was  thence  borrowed  by  the  American 
states,  with  but  little  reference  to  judicial  opinions.  I 
have  supplied  this  intentional  omission  by  collecting  in 
the  foot-note  a  number  of  extracts  in  which  eminent  judges 
have  expressed  their  conceptions  of  its  nature.  Some  of 
these  judges  have  attempted  to  place  the  subject  upon  a 
broad  and  secure  foundation.  While  there  is  a  general 
unanimity  in  their  views,  it  is  still  impossible  to  reconcile 
all  the  judicial  opinions,  and  some  of  them  maintain  a 
theory  of  the  jurisdiction  which  is  certainly  too  partial  and 
restricted.^ 

undoubtedly  not  ^^Titten  in  a  scientific  form,  contain  the  central  truth  of  the 
system,  the  truth  which  must  always  be  recognized  and  acted  upon  in  the 
administration  of  equity.  Lord  Hardwicke  does  not  deny  the  existence  nor 
the  necessity  of  general  principles,  —  no  other  Chancellor  Avas  ever  more 
governed  in  his  judicial  work  by  principles,  —  but  he  would  guard  against 
the  theory  which  locks  these  principles  up  in  the  already  existing  precedents, 
and  limits  their  free  application  to  facts,  circumstances,  and  relations  similar 
to  those  which  had  been  the  subject-matter  of  former  adjudications.  In  other 
words.  Lord  Hardwicke  in  this  short  passage  states  the  same  view  which  I 
had  given  in  the  text.  Although  equity  is  and  long  has  been  in  every  sense  of 
the  word  a  system,  and  although  it  is  impossible  that  any  neiv  general  prin- 
ciples should  be  added  to  it,  yet  the  truth  stands,  and  always  must  stand, 
that  the  final  object  of  ecjuitij  is  to  do  right  and  justice. 

1  In  Cowper  v.  Cowper,  2  P.  Wms.  720,  753,  Sir  Joseph  Jekyl,  M.  R., 
defined  the  scope  and  powers  of  equity  as  follows :  "  The  law  is  clear,  and 
courts  of  equity  ought  to  follow  it  in  their  judgments  concerning  titles  to 
equitable  estates ;  otherwise  great  uncertainty  and  confusion  would  ensue. 
And  though  proceedings  in  equity  are  said  to  be  secundum  discretionem 
boni  viri,  yet  when  it  is  asked,  Vir  bonus  est  quis?  the  answer  is,  Qui  con- 
8ulta  patrum,  qui  leges  juraque  scrvat.  (Who  is  the  good  man?  He  who 
maintains  the  opinions  of  his  predecessors,  and  the  laws  and  decisions. )  And 
it  is  said  in  Rook's  Case,  5  Coke,  99b,  that  discretion  is  a  science  not  to 
act  arbitrarily,  according  to  men's  wills  and  private  affections.  So  the  discre- 
tion which  is  executed  here  is  to  be  governed  by  the  rules  of  law  and  equity, 
whieli  arc  not  to  oppose,  but  each  in  its  turn  to  be  subservient  to,  the  other. 
This  discretion,  in  some  cases,  follows  the  law  implicitly;  in  others,  assists 
it  and  advances  the  remedy;  in  others,  again,  it  relieves  against  the  abuse, 
f)r  ,ill;iy.H  the  rigor  of  i(  ;  hiil  in  no  case  docs  it  contradict  or  overturn  the 
grounds  or  principles  tlifrcof,  as  has  been  sometimes  ignorantly  imputed  to 
this  court.  That  is  a  discretionary  power  which  neither  this  nor  any  other 
court,  not   even   the   highest,   acting   in   a   judicial   capacity,   is  by  the  con- 


65  THE    NATUllE    OF    EQUITY.  §  62 

§  62.  How  the  Equitable  Jurisdiction  is  Determined  at  the 
Present  Day. —  Although  the  jurisdiction  of  chancery  was 
originally  based  in  great  measure  upon  the  omissions  of 

stitution  entrusted  with."  This  hinguage  was  expressly  adopted  and  ap- 
proved by  Sir  Thomas  Chirke,  "SI.  R.,  in  Burgess  v.  Wheate,  1  W.  Black.  123, 
152.  The  general  propositions  at  the  beginning  of  this  extract  are  un- 
doubtedly correct;  but  it  is  strange  that,  in  the  face  of  the  equitable  doc- 
trines concerning  uses  and  trusts,  or  the  separate  estates  of  married  women, 
-or  the  enforcing  of  contracts  void  by  the  statute  of  frauds,  or  the  relief 
anciently  given  to  an  obligor  who  had  paid  the  debt  without  taking  a  release, 
jind  numerous  other  instances,  some  of  which  have  been  mentioned  in  the 
text, —  it  is  strange,  I  say,  in  the  face  of  all  these  facts,  that  an  equity 
judge  could  lay  down  a  proposition  so  palpably  untrue  as  the  one  just  quoted, 
that  in  no  case  does  equity  contradict  or  overturn  the  grounds  and  principles 
of  the  law;  a  great  part  of  its  doctrines  being  in  direct  contradiction  to  the 
rules  of  law  governing  the  same  circumstances  at  the  time  when  these  doc- 
trines were  first  enunciated.  Lord  Ilardwicke,  who  always  looked  at  the 
reality,  and  not  at  mere  conventional  formulas,  stated  the  true  relation  be- 
tween equity  and  the  law  in  a  short  but  pregnant  proposition.  It  being 
argued  in  a  case  before  him  that  equity  follows  the  law,  ^quitas  sequitur 
legem,  he  replied:  "  When  the  court  finds  the  rules  of  the  law  right  it  will 
follow  them;  but  then  it  will  likewise  go  beyond  them'":  Paget  v.  Gee, 
Ambl.  App.  807,  810.  In  the  case  of  Manning  v.  Manning,  1  Johns.  Ch.  530, 
Chancellor  Kent  explained  his  own  position  as  an  American  chancellor,  and 
his  conception  of  equity  as  a  whole:  "I  take  this  occasion  to  observe  that 
I  consider  myself  bound  by  these  principles,  which  were  known  and  es- 
tablished as  law  in  the  courts  of  equity  in  England  at  the  time  of  the  in- 
stitution of  this  court,  and  I  shall  certainly  not  presume  to  strike  into  any 
new  path  with  visionary  schemes  of  innovation  and  improvement ;  Via  antiqua 
via  est  tuta.  .  .  .  This  court  ought  to  be  as  much  bound  as  a  court 
of  law  by  a  course  of  decisions  applicable  to  the  case,  and  establishing  a  rule. 
As  early  as  the  time  of  Lord  Keeper  Bridgman,  it  was  held  that  precedents 
were  of  authority  ( 1  Mod.  307.  See  the  citation  ante,  in  the  note  under 
§  59).  The  system  of  equity  principles  which  has  grown  up  and  become 
matured  in  England,  and  chieflj'  since  Lord  Nottingham  was  appointed  to  the 
custody  of  the  great  seal,  is  a  scientific  system,  being  the  result  of  the 
reason  and  the  labors  of  learned  men  for  a  succession  of  ages.  It  contains 
the  most  enlarged  and  liberal  views  of  justice,  with  a  mixture  of  positive  and 
technical  rules  founded  in  public  policy,  and  indispensable  in  every  municipal 
code.  It  is  the  duty  of  this  court  to  apply  the  principles  of  this  system  to 
individual  cases  as  they  may  arise,  and  by  this  means  endeavor  to  transplant 
and  incorporate  all  that  is  applicable  in  that  system  into  the  body  of  our 
own  judicial  annals,  by  a  series  of  decisions  at  home."  The  propositions  here 
quoted  are  undoubtedly  true,  and  yet  the  feeling  cannot  be  avoided  that  they 
do  not  represent  the  entire  truth.  The  character  of  Chancellor  Kent's  mind 
was  eminently  conservative;  and  this  conservative  tendency  has  led  him  to 
suppress,  or  at  least  to  refrain  from  expressing,  the  element  of  vitality  and 
expansion  which  inheres  in  the   system,   and  the   power  of  the  court  in  its 

Vol.  I  — 5  , 


§  62  EQUITY    JURISPRUDENCE.  6& 

the  common  law,  the  injustice  of  many  of  its  rules,  and 
its  inability,  from  its  modes  of  procedure,  to  grant  the 
variety  of  remedies  adequate  to  the  wants  of  society  and 
the  demands  of  justice,  yet  since  the  equitable  system  has 
become  fully  established,  and  its  principles  settled,  this 
origin  of  the  jurisdiction  is  no  longer  regarded  as  furnish- 
ing the  real  criterion.  The  whole  question  by  which  the 
extent  of  the  equity  jurisdiction  is  practically  determined 
is  no  longer,  whether  the  case  is  omitted  by  the  law,  or 
the  legal  rule  is  unjust,  or  even  the  legal  remedy  is  in- 
adequate,—  although  the  latter  inquiry  is  still  sometimes 
made  and  treated  as  though  it  were  controlling, —  the  ques- 
tion is,  rather,  whether  the  circumstances  and  relations 
presented  by  the  particular  case  are  fairly  embraced  within 
any  of  the  settled  principles  and  heads  of  jurisdiction 
which  are  generally  acknowledged  as  constituting  the  de- 
partment of  equity.^    Two  results  therefore  follow :    First, 

fullness  to  enlarge  the  equitable  principles,  to  extend  them  over  new  facts  and 
relations,  and  to  render  tlicni  fruitful  in  the  constant  production  of  new 
rules. 

1  The  position  which  I  maintain  is  well  illustrated  by  a  dictum  of  Jessel, 
M.  R.,  • —  one  of  the  most  clear-headed  and  able  judges  of  this  generation,  — 
in  the  recent  case  of  Johnson  v.  Crook,  L.  R.  12  Ch.  Div.  G39,  649.  He  la 
discussing  the  question  whether  a  certain  rule  of  equity  jurisprudence  had 
been  established,  and  has  cited  a  series  of  decisions  to  show  that  it  had  not 
been  established,  but  that  the  contrary  rule  had  been  acted  upon.  He  then 
adds :  "  Having  examined  all  the  authorities,  I  cannot  find  a  trace  of  it 
(i.  e.,  the  rule  in  cjuestion)  before  the  case  I  am  about  to  mention,  and  there- 
fore if  there  is  sucli  a  law  it  must  have  been  made  in  the  year  1866.  Now, 
it  could  only  liave  been  made  in  the  year  1866  by  statute,  because  in  the  year 
1806  equity  judges  did  not  profess  to  make  new  late,  and  when  they  state  what 
the  law  is,  they  do  not  mean,  as  might  have  been  said  two  or  three  centuries 
before,  that  that  was  law  which  they  thought  ought  to  be  law."  To  avoid  a 
misunderstanding  of  this  position,  it  must  be  remembered  that  I  am  speaking 
of  the  equity  system  as  a  whole,  as  it  exists  in  England,  and  in  those 
American  states  whicli  have  clothed  their  courts  with  the  entire  equitable 
jurisdiction  of  the  cliaiiccry.  In  several  of  the  states,  a  partial  jurisdiction 
only  has  been  granted,  and  it  is  by  the  express  langu.age  of  the  statutes  re- 
stricted to  tiiose  cases  in  which  an  adctjuate  remedy  cannot  be  obtained  at 
law.  In  giving  a  construction  to  tliis  legislation,  the  question  whether  the 
legal  remedy  is  adequate  bccromes  of  great  practical  importance.  This  subject, 
as  to  the  extent  of  the  jurisdiction,  which  is  here  merely  alluded  to,  will  be 
fully  examined  in  a  subsequent  chapter. 


67  THE    NATURE    OF    EQUITY.  §  63^' 

a  court  of  equity  will  not,  unless  perhaps  in  some  very 
exceptional  case,  assume  jurisdiction  over  a  controversy 
the  facts  of  which  do  not  bring  it  within  some  general 
principle  or  acknowledged  head  of  the  equitable  jurispru- 
dence; and  secondly,  if  the  circumstances  do  bring  the  case 
within  any  of  these  principles  or  heads,  a  jurisdiction  over 
it  will  be  maintained,  although  the  law  may  have  been  so 
altered  by  judicial  action  or  by  positive  legislation  that  it 
has  supplied  the  original  omission,  or  has  brought  the  legal 
rule  into  a  conformity  with  justice,  or  has  furnished  an 
adequate  legal  remedy.  This  latter  proposition  is  true  as 
the  general  doctrine  concerning  the  extent  of  the  equity 
jurisdiction,  but  its  operation  has  sometimes  been  pre- 
vented, and  the  jurisdiction  itself  denied,  in  such  cases  by" 
express  statute.- 

§  63.  Recapitulation :  Nature  of  Equity  Stated  in  Four  Propo- 
sitions.— I  shall  bring  this  examination  into  the  general 
nature  of  equity  to  an  end  by  formulating  four  distinct 
propositions:  1.  The  moral  law,  as  such,  is  not  an  element 
of  the  human  law.  Whatever  be  the  name  under  which  it 
is  described, —  the  moral  law,  the  natural  law,  the  law  of 
nature,  the  principles  of  right  and  justice  —  this  code,  which 
is  of  divine  origin,  and  which  is  undoubtedly  compulsory" 
upon  all  mankind  in  their  personal  relations,  is  not  per  se 
or  ex  propria  vigore-  a  part  of  the  positive  jurisprudence- 
which,  under  the  name  of  the  municipal  law,  each  inde- 
pendent state  has  set  for  the  government  of  its  own  body 
politic.  This  truth,  so  simple  and  so  plain,  and  yet  so  often 
forgotten  by  text-writers  and  judges,  removes  at  once  all 
doubt  and  difficulty  from  a  clear  conception  of  the  positive- 
human  law,  and  of  its  relations  with  the  higher  and  divine- 

2  In  support  of  the  general  doctrine,  see  Shotwell  v.  Smith,  20  N.  J.  Eq.. 
79;  Segar  v.  Parish,  20  Gratt.  672;  Pratt  v.  Pond,  5  Allen,  59;  King  v.  Bald- 
win, 2  Johns.  Ch.  554;  Cannon  v.  McNab,  48  Ala.  99;  Collins  v.  Blantern,. 
2  Wils.  341 ;  Bromley  v.  Holland,  7  Ves.  19,  21 ;  Atkinson  v.  Leonard,  3  Brown 
Ch.  218.  But,  per  contra,  see  Ainsley  v.  Mead,  3  Lans.  116;  Hall  v.  Joiner, 
1  Rich.,  N.  S.,  186;   Riopelle  v.  Doellner,  26  Mich.   102. 


§  64  EQUITY    JURISPRUDENCE.  68 

law  which  we  call  morality.  Speculative  writers  upon  the 
natural  law  may  well  see  in  it  the  foundation  of  all  per- 
fected human  legislation,  and  it  is  not  surprising  that  they 
should  confound  the  two.  It  is  surprising  that  those  who 
treat  of  the  human  jurisprudence  alone,  and  especially 
those  who  administer  that  jurisprudence,  should  confound 
the  commands  uttered  by  the  divine  Law-giver  with  those 
issued  by  human  law-makers.  It  is  true  that  many  of  the 
precepts  of  this  moral  code  relate  to  mankind  considered  as 
members  of  an  organized  society, —  the  state,— and  pre- 
scribe the  obligations  which  belong  to  them  as  component 
parts  of  a  national  body;  and  therefore  these  precepts  are 
jural  in  their  nature  and  design,  and  the  duties  which  they 
impose  upon  individuals  are  of  the  same  kind  as  those  im- 
posed by  the  human  authority  of  the  state.  It  is  also  true 
that  human  legislation  ought  to  conform  itself  to  and 
embody  these  jural  precepts  of  the  moral  code;  every  legis- 
lator, whether  he  legislate  in  a  Parliament  or  on  the  judicial 
bench,  ought  to  find  the  source  and  material  of  the  rules  he 
lays  down  in  these  principles  of  morality;  and  it  is  certain 
that  the  progress  towards  a  perfection  of  development  in 
every  municipal  law  consists  in  its  gradually  throwing  off 
what  is  arbitrary,  formal,  and  unjust,  and  its  adopting  in- 
stead those  rules  and  doctrines  which  are  in  agreement  with 
the  eternal  principles  of  right  and  morality.  But  it  is  no 
less  true  that  until  this  work  of  legislation  has  been  done, 
until  the  human  law-giver  has  thus  borrowed  the  rules  of 
morality,  and  embodied  them  into  the  municipal  juris- 
prudence by  giving  them  a  human  sanction,  morality  is  not 
binding  upon  the  citizens  of  a  state  as  a  part  of  the  law  of 
that  state.  In  every  existing  municipal  law  belonging  to  a 
civilized  nation,  this  work  of  adaptation  and  incorporation 
has  been  performed  to  a  greater  or  less  degree. 

§  64.  2.  Another  very  large  portion  of  the  precepts  of 
morality  are  not  jural  in  their  nature;  they  do  not  relate 
to  mankind  considered  as  forming  a  society,  as  organized 


69  THE    NATURE   OF   EQUITY.  §  65 

into  a  state,  but  only  to  individuals,  prescribing  their  per- 
sonal duties  towards  each  other  and  towards  God.  These 
moral  precepts  create  obligations  resting  upon  separate  per- 
sons, which  the  state  and  human  law  do  not  and  cannot 
recognize  or  enforce ;  and  they  are  left  to  be  enforced  solely 
by  the  divine  sanction,  acting  in  and  upon  the  conscience 
of  each  person.  Such  obligations  are  often  called  ''  im- 
perfect," which  is  in  every  point  of  view  a  very  incorrect 
and  misleading  designation.  Regarded  as  parts  of  the 
divine  code  of  morals,  and  as  enforced  by  the  divine  sanc- 
tion, they  are  as  '*  perfect  "  and  binding  as  any  others; 
considered  as  parts  of  human  jurisprudence  to  be  enforced 
by  human  sanction,  they  are  not  simply  imperfect,  but  are 
absolutely  non-existent ;  they  are  no  obligations  at  all.  With 
this  entire  class  of  moral  imles  and  precepts  the  law  of  the 
state  does  not  and  cannot  deal ;  they  do  not  act  within  the 
sphere  of  human  legislation ;  they  are  not  jural  principles.. 
The  question  then  arises,  Does  the  system  of  equity  estab- 
lished in  the  United  States  and  in  England  contain  all  the 
jural  principles  of  morality  which  have  been  borrowed  and 
incorporated  into  the  municipal  jurisprudence?  The 
answer  to  this  inquiry  is  contained  in  the  two  following 
propositions. 

§  65.  3.  *'  Equity  "  alone  does  not  embrace  all  of  the 
jural  moral  precepts  which  have  been  made  active  prin- 
ciples in  the  municipal  jurisprudence.  The  ''  law,"  even: 
the  "  common  law,"  as  distinct  from  statutory  legislation, 
has  in  the  course  of  its  development  adopted  moral  rules, 
principles  of  natural  justice  and  equity,  notions  of  ab- 
stract right,  as  the  foundation  of  its  doctrines,  and  has 
infused  them  into  the  mass  of  its  particular  rules.  Un- 
questionably at  an  early  day  the  common  law  of  England 
had  comparatively  little  of  this  moral  element;  it  abounded 
in  arbitrary  dogmas,  as,  for  example,  the  effect  given  to 
the  presence  or  absence  of  a  seal;  but  this  was  the  fault 
of  the  age,  and  the  sin  was  chiefly  one  of  omission;  the 


^  66  EQUITY   JURISPRUDENCE.  70 

ancient  law  was,  after  all,  rather  unmoral  than  immoral. 
But  this  has  been  changed,  and  at  the  present  day  a  large 
part  of  the  *'  law  "  is  motived  by  considerations  of  justice, 
based  upon  notions  of  right,  and  permeated  by  equitable 
principles,  as  truly  and  to  as  great  an  extent  as  the  com- 
plementaiy  department  of  the  national  jurisprudence  which 
is  technically  called  ''  equity."  This  work  of  elevating  the 
law  has  been  accomplished  by  two  distinct  agencies,  judicial 
legislation  and  parliamentary  legislation.  At  the  present 
day  the  latter  agency  is  the  most  active  and  by  far  the 
most  productive;  but  prior  to  the  epoch  of  conscious  legal 
reform,  which  began  in  England  about  1830,  and  at  a  con- 
siderably earlier  day  in  this  country,  the  great  work  of 
legislation  within  the  domain  of  the  private  law,  except  in 
a  few  prominent  instances,  such  as  the  Statute  of  Uses, 
■of  Wills,  etc.,  was  done  by  the  law  courts.  In  expanding 
the  law,  the  judges  in  later  times  have  designedly  borrowed 
the  principles  from  the  moral  code,  and  constructed  their 
rules  so  as  to  be  just  and  righteous.  The  legislature  also 
has  conformed  the  modern  statutes  to  the  precepts  of  a 
high  morality,  and  their  legislation  has  tended  to  correct 
any  mistakes  and  to  supply  any  omissions  in  the  body  of 
rules  constructed  by  the  legislative  function  of  the  courts. 
§  66.  While  the  foregoing  description  is  true  of  a  large 
portion  of  the  *'  law,"  it  is  also  true  that  from  the  very 
necessities  of  the  case  there  is  another  large  part  of  the 
law  which  is  and  must  be  founded  upon  expediency  rather 
than  upon  morality.  The  influence  of  ancient  institutions, 
the  motives  of  policy,  the  primary  importance  of  certainty, 
the  necessity  of  rules  which  shall  correspond  with  the  aver- 
age conduct  of  men,—  such,  for  example,  as  mimy  rules  of 
presumption  which  may  produce  great  wrong  in  particular 
cases,— these  and  other  facts  of  equal  importance  must 
exist  in  every  society,  and  must  prevent  a  determinate  part 
'  of  its  law  from  boiug  constructed  upon  a  basis  of  morality, 
and  from  admitting  the  creative  force  of  purely  moral  prin- 
tciples.    This  inherent  necessity  of  a  constituent  part  which 


71  THE    NATURE    OF    EQUITY.  §  66 

is  arbitrary  and  expedient,  rather  than  just  and  righteous, 
is  a  most  important  distinction  between  the  **  law  "  and 
*'  equity."  The  element,  however,  of  the  English  and 
American  law,  which  has  operated  by  far  the  most  power- 
fully to  retard  its  development  in  the  direction  of  morality, 
which  has  placed  an  insuperable  barrier  to  its  perfected 
growth,  which  has  rendered  it  incomplete  as  an  embodiment 
of  jural  rights,  unable  to  administer  justice  to  the  citizen 
in  all  his  relations,  and  unequal  to  the  needs  of  society,  has 
been  and  is  its  mode  of  procedure,  its  remedial  system  as 
a  whole.  This  narrow,  technical,  arbitrary  procedure,  ad- 
mitting growth  in  only  one  direction,  granting  but  few 
remedies,  and  incapable  of  enlarging  their  number  or  chang- 
ing their  nature,  was  the  fact  which  more  than  all  else  made 
it  impossible  for  the  "  law  "  to  borrow  all  the  jural  pre- 
cepts of  the  moral  code,  incorporate  them  into  its  own  rules, 
and  administer  the  full  remedial  justice  which  these  equi- 
table principles  demanded.  The  legal  growth  was  stunted, 
its  development  was  checked,  its  tendencies  to  do  justice 
in  all  the  private  relations  of  society  were  thwarted  by  its 
partial  remedies  and  its  imperfect  means  of  administer- 
ing them.  From  this  cause  the  necessity  of  a  distinct  de- 
partment of  equity,  with  its  own  mode  of  procedure,  and 
with  absolute  freedom  and  elasticity  in  the  forms  of  its 
remedies,  and  their  adaptation  to  the  rights  and  duties  of 
parties,  has  continued  to  the  present  day,  and  must  continue 
until  the  principles  and  rules  of  the  common-law  remedial 
system  are  utterly  abandoned.^ 

1  I  quote  the  following  passage  from  Mr.  Snell's  Principles  of  Equity 
(Introd.,  pp.  2,  3),  which  expresses  substantially  the  same  theory  as  that 
given  in  the  text :  "Are  we,  then,  to  infer  that  the  equity  of  our  Court 
of  Chancery  represents  the  residue  of  natural  equity,  or,  to  put  it  conversely, 
the  whole  of  that  portion  of  natural  equity  which  may  be  enforced  by  legal 
sanctions,  and  administered  by  legal  tribunals?  The  slightest  acquaintance 
with  English  jurisprudence  will  show  us  that  were  we  to  arrive  at  this 
conclusion,  we  should  ignore  the  claims  of  the  common  law  and  the  statute 
law.  Although,  when  we  make  use  of  the  term  '  common  law,'  we  use  it 
as  contradistinguished  from  equity,  technically  so  called,  that  circumstance 
should  Tjy  no  means  blind  us  to  the  fact  that  in  the  main  the  common  law 


§  67  EQUITY    JURISPRUDENCE.  72 

§  67.  4.  As  the  expansive  tendencies  of  the  common  law 
are  thus  confined  within  certain  limits,  and  as  its  power  to 
administer  justice  and  to  grant  the  variety  of  remedies 
needed  in  the  manifold  relations  of  society  is  incomplete, 
the  English  and  American  system  of  equity  is  preserved  and 
maintained  to  supply  the  want,  and  to  render  the  national 
jurisprudence  as  a  whole  adequate  to  the  social  needs.  It 
is  so  constructed  upon  comprehensive  and  fruitful  prin- 
ciples, that  it  possesses  an  inherent  capacity  of  expansion, 
so  as  to  keep  abreast  of  each  succeeding  generation  and  age. 
It  consists  of  those  doctrines  and  rules,  primary  and  reme- 
dial rights  and  remedies,  which  the  common  law,  by 
reason  of  its  fixed  methods  and  remedial  system,  was 
either  unable  or  inadequate,  in  the  regular  course  of 
its     development,     to     establish,     enforce,     and     confer, 

is  a  system  as  much  founded  on  the  basis  of  natural  justice  and  good  con- 
science as  our  equity  system;  that  if  it  has  fallen  short  in  its  operation, 
its  failure  is  rather  to  be  attributed  to  defects  in  the  modes  of  adminis- 
tering those  principles  than  to  any  inherent  weakness  or  deficiency  of  the 
principles  themselves.  Clearly,  therefore,  another  large  portion  of  enforce- 
able equity,  often  enfeebled  though  it  be  by  a  defective  mode  of  administra- 
tior,  is  to  be  found  in  the  common  law.  And  finally,  we  must  look  to  the 
enactments  of  the  legislature,  the  statute  law,  as  embodying  and  giving  legal 
sanction  to  many  of  those  principles  of  natural  equity  which,  though  capable 
of  being  administered  by  courts,  have  been  omitted  to  be  recognized  as  sui-h, 
—  an  omission  arising  from  that  tendency  of  all  human  institutions  founded 
on  a  body  of  principles  to  assume  a  defined  and  solidified  mass,  refusing  to 
receive  further  accessions  even  from  a  cognate  source,  and  thus  to  be- 
come after  a  time  incapable  of  expansion.  Having  thus  mapped  out  the 
whole  area  of  what  is  termed  natural  justice,  —  having  seen  that  a  large 
portion  of  it  cannot  be  enforced  at  all  by  civil  tribunals,  that  another  large 
section  of  it  is  administered  in  courts  of  common  law,  and  a  third  part 
enforced  by  legislative  enactments, — we  are  in  a  position  to  indicate  ap- 
proximately the  province  of  equity,  technically  so  termed.  Putting  out  of 
consideration  all  that  part  of  natural  equity  sanctioned  and  enforced  by 
legislative  enactments,  equity  may  tlien  be  defined  as  that  portion  of  natural 
justice  which,  though  of  such  a  nature  as  properly  to  admit  of  its  being 
judicially  enforced,  was,  from  circumstances,  omitted  to  be  enforced  by  com- 
mon-law courts,  —  an  omission  which  was  supplied  by  the  Court  of  Chancery. 
In  sliort,  the  whole  distinction  between  equity  and  law  may  be  said  to  be, 
not  HO  much  a  matter  of  substance  or  principle  as  of  form  and  history." 
These  concluding  sentences  hardly  contain  an  adequate  conception  of  the 
Knglish  and  American  equity. 


73  "  THE    NATURE    OF    EQUITY.  §  67 

and  which  it  therefore  either  tacitly  omitted  or  openly 
rejected.  On  account  of  the  somewhat  arbitrary  and 
harsh  nature  of  the  common  law  in  its  primitive  stage,  these 
doctrines  and  rules  of  equity  were  intentionally  and  con- 
sciously based  upon  the  precepts  of  morality  by  the  early 
chancellors,  who  borrowed  the  jural  principles  of  the  moral 
code,  and  openly  incorporated  them  into  their  judicial  legis- 
lation. This  origin  gave  to  the  system  which  we  call  equity 
a  distinctive  character  which  it  has  ever  since  preserved. 
Its  great  underlying  principles,  which  are  the  constant 
sources,  the  never-failing  roots,  of  its  particular  rules,  are 
unquestionably  principles  of  right,  justice,  and  morality, 
so  far  as  the  same  can  become  the  elements  of  a  positive 
human  jurisprudence;  and  these  principles,  being  once  in- 
corporated into  the  system,  and  being  essentially  unlimited, 
have  communicated  their  own  vitality  and  power  of  adap- 
tation to  the  entire  branch  of  the  national  jurisprudence  of 
which  they  are,  so  to  speak,  the  substructure.  It  follows 
that  the  department  which  we  call  equity  is,  as  a  whole, 
more  just  and  moral  in  its  creation  of  right  and  duties  than 
the  correlative  department  which  we  call  the  law.  It  does 
not  follow,  however,  that  the  equity  so  described  is  ab- 
solutely identical  with  natural  justice  or  morality.  On  the 
contrary,  a  considerable  portion  of  its  rules  are  confessedly 
based  upon  expediency  or  policy,  rather  than  upon  any 
notions  of  abstract  right. 


§  68  EQUITY   JURISPRUDENCE.  74 


SECTION  III. 

THE  PRESENT  RELATIONS  OF  EQUITY  WITH  THE  LAW. 

ANALYSIS. 

§  68.  Importance  of  correctly  understanding  these   present  relations. 

§  69.  Changes  in  the  relations  of  equity  to  the  law  effected  partly  by 
statute  and  partly  b}'^  decisions. 

§§  70-88.  Important  instances  of  such  changes  in  these  relations. 

§   70.  In  legal  rules  concerning  the  effect  of  the  seal. 

§  71.  Ditio  suits  on  lost  instruments. 

§  72.  Ditto  forfeitures  and  penalties. 

§§  73,  74.  Ditto  mortgages  of  land. 

§  75.  In  statutes  concerning  express  trusts. 

'§  76.  Ditto  recording  and  doctrine  of  priorities. 

§  77.  Ditto  administration  of  decedents'  estates. 

§  78.  Ditto  jurisdiction  over  infants. 

^§  79,80.  Ditto  married  women's  property. 

§  81.  In  statutory  restrictions  upon  the  equitable  jurisdiction. 

§§  82,83.  In  the  practical  abolition  of  the  "auxiliary"  jurisdiction. 

§§  84-88.  In  the  Reformed  Procedure  combining  legal  and  equitable  methods. 

§  68.  Importance  of  Correctly  Understanding  These  Present 
Relations. —  In  accounting  for  the  historical  origin  of  equity, 
and  in  describing  its  general  nature,  it  is  necessary  to  go 
back  to  the  period  of  its  infancy  and  early  growth,  when 
the  common  law  was  also  in  its  primitive  and  undeveloped 
condition.  We  thus  naturally  form  a  picture  of  the  two 
systems  standing  in  marked  contrast  and  even  opposition, 
acknowledging  different  sources,  controlled  by  different 
principles,  exhibiting  different  tendencies,  each  complete  in 
itself  and  independent  of  the  other.  The  impression  which 
is  thus  obtained  of  their  relations  is  too  apt  to  be  retained 
in  describing  the  ecpiity  as  it  has  existed  at  subsequent 
times,  and  even  as  it  exists  at  the  present  day.  The  effect 
of  such  a  tendency  to  confuse  different  epochs  and  condi- 
tions is  shown  in  some  of  the  treatises  upon  equity  juris- 
prudence, wliich  tacitly  assume  that  all  of  the  original  an- 
tagonism still  prevails,  and  wliich,  ignoring  the  great  and 
often  radical  changes  made  in  the  law,  discuss  their  sub- 
ject-matter as  though  the  relations  between  law  and  equity 


75  PEESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW,  §  69 

continued  to  be  the  same  as  they  were  in  the  reign  of 
Charles  II.,  or  even  later,  in  the  reigns  of  George  III.  and 
George  IV.,  and  under  the  chancellorships  of  Lord  Thurlow 
and  Lord  Eldon, —  as  though  all  the  harsh,  arbitrary,  un- 
just rules  which  then  disgraced  the  law  remained  unmodi- 
fied. Such  neglect  to  appreciate  the  actual  condition  of  the 
law  will  lead  to  the  useless  discussion  of  equitable  doctrines 
which  have  become  obsolete,  since  all  occasion  for  their 
application  has  been  removed,  and  will  produce,  almost  as 
a  matter  of  course,  a  distorted  representation  of  equity  as 
a  whole.  In  order,  therefore,  to  form  an  accurate  notion 
of  equity,  its  present  relations  with  the  law  must  be  care- 
fully observed,  and  to  that  end  the  changes  which  have  been 
made  in  the  law  itself,  and  which  have  modified  those  rela- 
tions, must  be  pointed  out  at  every  stage  of  the  discussion. 
Without  undertaking  to  give  an  exhaustive  enumeration,  or 
any  detailed  description,  I  shall  simply  mention  some  of 
the  most  important  classes  of  alterations  which  have  been 
made  in  the  law  since  the  principles  and  doctrines  of  equity 
were  definitely  settled. 

§  69.  Changes  in  the  Relations  of  Equity  to  the  Law. — 
These  changes  have  certainly  been  very  great.  They  have 
been  effected,  first,  by  the  legislative  work  of  the  common- 
law  courts;  and  secondly,  by  statutory  legislation.  Since 
the  doctrines  of  equity  began  to  react  upon  the  law,  and 
especially  since  the  impulse  given  by  the  brilliant  career  of 
Lord  Mansfield,  the  common-law  courts  have  consciously 
adopted  and  applied,  as  far  as  possible,  purely  equitable 
notions  —  not  so  much  the  technical  equity  of  the  Court  of 
Chancery,  but  the  principles  of  natural  justice  —  in  their 
decision  of  new  cases,  and  in  the  development  of  the  law, 
until  a  large  part  of  its  rules  are  as  truly  equitable  and 
righteous  in  their  nature  as  those  administered  by  the 
Chancellor.  P>om  time  to  time,  the  legislature  has  inter- 
posed, and  by  occasional  statutes  has  aided  this  work  of 
reform.  During  the  past  generation,  since  about  1830  in 
England,  and  an  earlier  date  in  the  United  States,  this 


§  70  EQUITY    JURISPRUDENCE.  76^ 

legislative  process  of  amendment  has  been  more  constant^ 
more  systematic,  and  more  thorough,  extending  to  all  parts 
of  the  law,  and  has  been  the  chief  agency  in  the  work  of 
legal  reform.  The  result  is,  that  many  doctrines  and  rules 
which  were  once  exclusively  recognized  and  enforced  by 
chancery  have  become  incorporated  into  the  law,  and  are 
now,  and  perhaps  long  have  been,  administered  by  the  law 
courts  in  the  decision  of  cases.  In  this  manner,  the  law  has 
been  brought  at  many  points  into  a  coincidence  with  equity. 
Nor  has  the  legislative  work  been  confined  to  the  law;  it 
has  largely  acted  upon  the  system  of  equity,  and  has 
brought  that  system  into  a  closer  resemblance^  external  at 
least,  with  the  law.  These  changes  have  naturally  gone 
much  further  in  the  United  States  than  in  England ;  the  law 
has  been  more  essentially  altered,  and  equity  itself  has  been 
subjected  to  more  limitations.  The  following  instances  are- 
taken  from  the  legislation,  statutory  or  judicial,  of  thi& 
country. 

§  70.  1.  Effect  of  a  Seal. —  One  of  the  earliest  instances, 
of  equity  breaking  in  upon  the  common  law  was  the  relief 
which  it  gave  to  a  debtor  on  a  sealed  instrument  who  had 
paid  the  debt  in  full,  but  had  neglected  to  obtain  a  release 
or  a  surrender  up  of  the  contract.  The  legal  rule  was,  that 
a  sealed  instrument  could  only  be  discharged  by  another 
instrument  of  as  high  a  character,  or  else  by  a  surrender 
of  it,  so  that  the  creditor  could  not  "  make  profert  "  of  it 
in  an  action  at  law.  Equity  justly  regarded  the  debt  as  the 
real  fact,  its  payment  as  a  satisfaction,  and  the  seal  as  a 
mere  form.  It  therefore  relieved  the  debtor  who  had  thus 
paid,  and  against  whom  an  action  at  law  was  brought  on 
the  obligation,  by  restraining  this  action;  and  the  debtor 
was  thus  practically  safe,  although  technically  his  legal  lia- 
bility still  subsisted.  Generalizing  this  particular  rule, 
equity  never  gave  the  consequence  to  a  seal  which  the  com- 
mon law  gave;  it  always  looked  below  this  mere  form  intO' 
the  real  relations  of  the  parties,  and  rejected  the  dogma 
that  a  seal  can  only  be  discharged  by  an  act  of  equal  degree. 


77  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  71 

These  equitable  doctrines  Lave  been  transferred  into  the 
*'  law  "  of  the  United  States.  The  special  head  of  equitable 
relief  first  mentioned  has  become  utterly  obsolete,  since  the 
defense  of  payment  in  such  cases  has  long  been  admitted 
hy  the  common-law  courts.  In  most  of  the  states  all  distinc- 
tion between  sealed  and  unsealed  instruments  is  abolished, 
except  so  far  as  the  statute  of  limitations  operates  to  bar 
a  right  of  action ;  in  others,  the  only  effect  of  the  seal  upon 
executory  contracts  is  to  raise  a  prima  facie  presumption  of 
a  consideration,  while  it  is  still  required  on  a  conveyance  of 
land ;  in  a  very  few,  the  common-law  rule  is  retained,  which 
makes  the  seal  conclusive  evidence  of  a  consideration.^  By 
this  legislation,  all  the  distinction  between  the  legal  and  the 
•equitable  doctrines  concerning  contracts  and  other  rights, 
except  those  growing  out  of  a  conveyance  of  land,  founded 
upon  the  presence  or  absence  of  the  seal,  has  been  abro- 
gated. The  equitable  doctrines,  of  course,  remain,  but  they 
have  become  a  part  of  the  law,  and  no  necessity  remains  of 
applying  to  courts  of  equity  for  their  enforcement.  Even 
the  equitable  rule  permitting  a  sealed  agreement  to  be 
modified  or  replaced  by  subsequent  parol  contract  is  gener- 
ally adopted  by  the  law  courts,  except  in  cases  where  the 
statute  of  frauds  prevents  its  operation.^ 

§  71.  2.  Lost  Instruments. —  By  another  ancient  doctrine 
of  the  common  law,  the  creditor  on  a  sealed  instrument 

1  In  some  states  the  seal  is  only  presumptive  evidence  of  a  considera- 
tion: See  New  York,  2  R.  S.  406,  §  77;  Alabama,  Rev.  Code  (1867),  p.  526, 
§  2632;  Michigan,  Comp.  Laws  (1871),  vol.  2,  p.  1710,  §  90;  Oregon,  Gen. 
Laws  (1872),  p.  258,  §  743;  Texa^,  Pascli.  Dig.,  vol.  1,  §  228.  In  many 
states  all  distinction  between  sealed  and  unsealed  instruments  is  abolished, 
and  a  seal  is  never  essential;  See  California,  Civ.  Code,  §  1629;  Indiana,  2 
R.  S.  (G.  &  H.),  p.  180,  §  273;  Iowa,  Rev.  Code  (1873),  p.  383,  §§  2112-2114; 
Kansas,  Gen.  Stats.  (1868),  p.  183,  §§  6-8;  Kentucky,  1  R.  S.  (Stanton's), 
p.  267,  §§  2,  3;  Nebraska,  Gen.  Stats.  (1873),  p.  1001;  Tennessee,  Gen.  Stats. 
(1871),  §§  1804,  1806;   Texas,  Pasch.  Dig.,  vol.   1,  §  5087    (on  contracts  and 

conveyances  "respecting  real  or  personal  property"). 

2  See  notes  to  Rees  v.  Berrington,  2  Eq.  Lead.  Cas.  1867,  1896  (4th  Am. 
ed.);  Hurlbut  v.  Phelps,  30  Conn.  42;  Headley  v.  Goundry,  41  Barb.  279; 
Clark  v.  Partridge,  2  Pa.  St.  13;  4  Pa.  St.  166;  Keisselbrach  v.  Livingston, 
4  Johns,  Ch,  114;  Kidder  v.  Kidder,  33  Pa.  St.  268. 


§  72  EQUITY    JURISPRUDENCE.  78 

which  had  been  lost  or  accidentally  destroyed  was  pro- 
hibited from  maintaining  an  action  upon  it,  because  he 
could  not  make  the  "  profert  "  which  the  inflexible  rules 
of  the  legal  procedure  required.  Equity,  disregarding  this 
form,  gave  him  relief  by  enforcing  the  demand.  At  a  latter 
day,  when  negotiable  paper  came  into  use,  the  owner  of  a 
bill  or  note  so  drawn  that  it  could  be  negotiated  by  delivery ,^ 
who  had  lost  it,  was  debarred  from  suing  upon  it  at  law, 
because  the  common-law  courts  had  no  means,  according  tO' 
their  rigid  forms  of  procedure,  of  compelling  him  to  indem- 
nify the  defendant  against  a  second  claim  made  by  any  bona 
fide  holder  into  whose  hands  the  paper  might  have  come. 
As  the  Court  of  Chancery  has  such  power,  through  its  abil- 
ity to  shape  its  remedial  processes  so  as  to  meet  any  new 
emergency,  it  acquired  jurisdiction  in  this  class  of  cases, 
and  for  a  long  time  all  suits  upon  such  lost  negotiable  paper 
were  necessarily  brought  in  equity.  Both  of  these  Tegal 
rules  have  been  changed.  The  courts  of  law  have  long  been 
able  to  entertain  actions  upon  lost  or  destroyed  bonds  and 
other  sealed  instruments,  since  the  ancient  requirement  of 
a  profert  by  the  plaintiff  has  been  abrogated.  Statutes 
have  generally  been  enacted  in  the  American  states  which 
permit  actions  at  law  on  lost  negotiable  paper  to  be  brought 
by  the  owner,  who  is  simply  required,  as  a  preliminary  step, 
to  execute  and  file  a  bond  of  indemnity  to  the  defendant.' 
In  this  manner  the  necessity  for  equitable  interference  has 
been  removed,  and  all  such  actions  to  recover  a  money  judg- 
ment upon  lost  obligations  or  negotiable  instruments  are- 
brought  in  courts  of  law  according  to  the  legal  modes  of 
procedure." 

§   72.     'i  Penalties. —  Another  most  important  class   of 
changes  in  the  hnv  consists  in  the  adoption,  to  a  consider- 

1  Examples  of  such   statutes   are,  3   N.   Y.  R.   S.,  p.   C91,   §§    lOG,    108    (5th; 
ed.)  ;  Civil  Code  of  Cal,,  S  3137. 

(a)  Til  is  y)arapraph  of  the  text  Ih  cited  in  Reeves  v.  Morgan,  48  N.  J.  Eq.- 
4ir),  21   Atl.   1040. 


79  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  73 

able  extent,  of  the  equitable  doctrines  concerning  penalties 
and  forfeitures.  The  ancient  common  law  rigidly  exacted 
all  penalties  and  enforced  all  forfeitures  if  the  act  which 
should  prevent  them  was  not  done  at  the  very  time  and  iu 
the  precise  manner  stipulated.  Equity  from  the  earliest 
period  of  its  growth  adopted  the  jDolicy  of  relieving  against 
penalties  and  forfeitures,  by  generally  treating  the  time  of 
performance  as  immaterial,  and  a  substantial  conformity  to 
the  stipulated  manner  of  it  as  sufficient,  and  by  giving  to 
the  creditor  what  was  justly  and  equitably  his  due,  and 
compelling  him  to  forego  the  surplus  which  he  had  exacted, 
and  which  the  law  permitted  him  to  retain.  These  equitable 
doctrines  have  to  a  great  extent  been  transferred  into  the 
law  of  the  American  states.  Law  courts  give  judgment  for 
the  amount  really  due,  and  not  for  the  penalty,  and  often 
accei:)t  a  subsequent  performance  without  exacting  the  for- 
feiture. The  most  familiar  example  is  that  of  a  bond  with 
penalty,  conditioned  for  the  payment  of  a  smaller  sum 
which  represents  the  real  debt.  The  equitable  doctrine  re- 
stricting the  recovery  to  the  sum  constituting  the  actual 
debt,  with  interest  for  the  delay,  has  been  everywhere  ac- 
cepted as  a  settled  rule  of  the  law.  This  modification  of  the 
common  law  has  generally  been  extended  so  as  to  include 
all  cases  where  a  penalty  or  forfeiture  has  been  agreed 
upon  as  security  for  the  pajonent  of  a  certain  or  ascertain- 
able sum  of  money. 

§  73.  4.  Mortgages. —  Intimately  connected  with  the 
equitable  doctrine  relating  to  forfeiture  is  the  remarkable 
change  which  has  been  made  in  the  law  of  the  American 
states  concerning  moi"tgages  of  land.  Without  attempting 
to  describe  either  the  common  law  or  the  equity  doctrine  as 
to  mortgages,  it  is  sufficient  for  my  present  purpose  to  state 
very  briefly  their  results.  Under  the  common  law  and 
equity  in  combination,  two  different  kinds  of  interests  or 
estates,  the  legal  and  the  equitable,  are  simultaneously  held 
in  the  mortgaged  premises  by  the  two  parties.  The  mort- 
gagee is  the  legal  owner,  and  after  a  default  is  entitled  to 


§74  EQUITY    JURISPRUDENCE.  80 

the  possession  of  the  land ;  he  can  convey  his  estate,  not  by 
an  assignment  of  the  mortgage,  but  by  a  deed  of  the  land 
itself;  on  his  death  it  descends  to  his  heirs  or  passes  to  his 
devisees,  and  does  not  go  to  his  administrators  or  execu- 
tors; in  short,  he  is  at  law  clothed  with  all  the  rights  and 
powers  of  legal  ownership.^  On  the  other  hand,  the  estate 
of  the  mortgagor,  after  default,  is  purely  an  equitable  one, 
a  right  to  redeem  the  land  from  the  mortgagee,  his  heirs, 
devisees,  or  grantees,  and  therefore  very  properly  denomi- 
nated * '  an  equity  of  redemption. ' '  Equity  regards  this  in- 
terest of  the  mortgagor  as  the  real  beneficial  estate  in  the 
land,  subject,  however,  to  the  lien  and  encumbrance  of  the 
mortgage,  and  as  such  it  can  descend  to  his  heirs,  pass  to 
his  devisees,  or  be  conveyed  by  deed  to  his  grantees.  Ac- 
cording to  the  equitable  theory,  the  interest  of  the  mort- 
gagee is  simply  a  lien  and  encumbrance  on  the  premises, 
and  not  an  estate  in  the  land  itself.  These  legal  rules,  and 
this  double  ownership  resulting  therefrom,  prevail  in  Eng- 
land, and  are  still  retained  in  most  of  the  New  England 
states  and  in  a  few  of  the  other  commonwealths;  but 
throughout  the  greater  part  of  the  country  a  radical  change 
has  been  made  in  the  law,  and  its  doctrines  as  to  the  respec- 
tive rights  and  interests  of  the  mortgagor  and  mortgagee 
have  been  substantially  conformed  to  those  of  equity.  I 
shall  take  the  law  of  New  York  as  the  type. 

§  74.  In  New  York  —  and  its  legislation  has  been  sub- 
stantially followed  in  so  many  of  the  states  that  it  may 
fairly  be  said  to  express  the  American  doctrine  —  there  is 
no  longer  any  double  ownership  nor. any  equitable  estate 
in  the  land ;  there  is  one  legal  estate  only,  and  that  belongs 
to  the  mortgagor  until  it  is  cut  off  by  foreclosure  and  sale. 
The  interest  of  the  mortgagee,  under  ordinary  circum- 
stances, is  not  an  estate  of  any  kind  in  the  land;  he  is  sim- 
ply a  creditor  holding  a  lien  upon  the  mortgaged  premises 

1  I    liiivf  nssiiiiicil    ill   lliis  (lc.scriptif)ii  that  tlic  mortgage  is   in  fee,  which  is 
the  common  cane  in  llie  Lnited  States. 


.'81  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  75 

as  security  for  his  debt,  which  lien  he  must  enforce  by  a 
foreclosure  and  sale."  He  is  not  entitled  to  possession,  and 
cannot  maintain  ejectment  either  against  the  mortgagor  or 
a  stranger.  On  his  death  his  interest  is  wholly  personal 
assets,  and  goes  to  his  administrator  or  executor.  He  can- 
not convey  the  land,  and  his  deed  of  it  could  operate  (if  at 
all)  only  as  an  assignment  of  the  mortgage.  He  can  assign 
the  mortgage  by  mere  delivery;  but  so  completely  is  the 
debt  the  principal  thing  and  the  mortgage  an  incident,  that 
an  assignment  of  the  debt  carries  with  it  the  mortgage  as 
a  collateral,  while  an  assignment  of  the  mortgage  without 
the  debt  is  a  nullity.  On  the  other  hand,  the  mortgagor  is 
the  owner  of  the  ent' re  legal  estate,  subject  to  the  lien  and 
encumbrance  of  the  mortgage,  until  his  title  is  divested  by 
a  foreclosure  and  sale;  the  term  "  equity  of  redemption," 
when  used  to  designate  his  interest,  is  therefore  a  complete 
misnomer,  productive  only  of  confused  and  mistaken  no- 
tions. As  such  owner,  the  mortgagor  can  convey,  mort- 
gage, or  devise  the  land,  and  if  he  dies  intestate,  it  descends 
to  his  heirs.  These  rules  no  longer  form  a  part  of  the  equi- 
table doctrine  merely;  they  are,  partly  as  the  results  of 
statutes  and  partly  of  judicial  decision,  rules  of  the  law,  con- 
stantly recognized  and  enforced  in  all  the  courts  of  com- 
mon-law jurisdiction.^  The  effect  of  these  alterations  in 
the  law  upon  the  equity  jurisdiction  has  certainly  been  very 
great. 

§  75.  5.  Express  Trusts. —  Another  important  change  in 
the  relations  between  law  and  equity  has  been  effected  by 
the  statutes  of  many  states  concerning  express  trusts  in 

1  For  example,  every  court  of  law  will  recognize  and  enforce  an  assign- 
ment of  the  debt  and  mortgage  made  by  the  mortgagee;  and  in  every  such 
■court,  as  well  as  in  courts  having  jurisdiction  of  probate  matters,  the  in- 
terest of  the  mortgagee,  upon  his  death,  is  recognized  as  devolving  upon 
his  personal  representatives,  while  that  of  the  mortgagor  is  treated  as 
descending  to  his  heirs  or  as  passing  to  his  devisees. 

(a)  Tlie  text  is  cited  in  Tapia  v.  that  a  trust  may  be  declared  in  a 
Demartini,  77  Cal.  383,  11  Am.  St.  mortgage  by  parol,  since  it  is  not  an 
Rep.   288,    19   Pac.   641,  to  the   point       estate  in  land. 

Vol.  I  —  G 


§  76  EQUITY    JURISPRUDENCE.  82 

land.  By  the  English  law,  in  the  absence  of  any  statutory 
restriction,  express  active  trusts  may  be  created  for  all  pos- 
sible purposes,  and  express  passive  trusts  corresponding, 
with  all  the  various  legal  estates,  in  fee,  for  life,  for  years, 
in  jDossession,  and  in  remainder,  as  the  case  may  be.  In 
the  latter  class  of  trusts  the  naked  legal  title  only  is  vested 
in  the  trustee,  while  the  equitable  interest  of  the  beneficiary 
is  the  one  which  possesses  all  the  attributes  of  real  owner- 
ship. The  field  of  equity  jurisdiction  which  these  trust 
estates  presented  has  been  greatly  narrowed  by  the  policy 
of  American  legislation.  The  statutes  of  New  York  and  of 
many  other  states  have  at  one  blow  abolished  all  express 
passive  trusts,  and  have  restricted  express  active  trusts  to 
a  very  few  specified  objects,^  declaring  void  all  those  at- 
tempted to  be  created  for  other  purposes.  Even  in  the  few 
cases  where  these  trusts  are  permitted,  the  entire  estate  is 
vested  in  the  trustee;  the  beneficiary  has  no  ownership, 
legal  or  equitable,  in  the  land;  his  sole  interest  is  simply  a 
right  in  equity  to  compel  a  performance  by  the  trustee  of 
the  obligations  created  by  the  trust, —  a  right  of  action 
merely,  and  not  an  equitable  estate  of  any  kind  in  the  sub- 
ject-matter. This  great  alteration  in  the  relations  of  the 
law  and  equity  with  respect  to  trusts  in  land  has  necessarily 
produced  an  important  effect  upon  the  extent  and  scope  of 
the  equity  jurisdiction  throughout  a  great  part  of  the 
United  States. 

§  76.  6.  Recording  and  Priorities. —  The  system  of  record- 
ing conveyances  and  mortgages  of  land  which  universally 
prevails  throughout  this  country  has  greatly  modified  and 
simplified  the  doctrines  of  equity  concerning  notice  which 

1  TIk'  following  arc  the  objects  for  which  express  active  trusts  are  gen- 
prally  permitted  in  the  states  whicli  have  adopted  tliis  legislation,  namely: 
1.  To  sell  the  land  for  the  purpose  of  paying  debts;  2.  To  sell,  mortgage,, 
or  lease  the  land  for  the  purpose  of  paying  legacies  or  other  charges  upon 
it;  3.  To  hfiM  :iii<l  manage  the  land  for  the  purpose  of  receiving  its  rent& 
and  profits  and  applying  them  to  the  use  of  a  beneficiary;  4.  To  hold  and 
manage  tlie  land  for  the  purpose  of  receiving  its  rents  and  profits  and  ac- 
cumulating them  during  the  minorities  of  infant  beneficiaries. 


83  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW,  §  77 

affect  titles  to  real  estates.  While  the  fundamental  prin- 
ciples with  respect  to  notice  are  unchanged  and  form  a  part 
of  our  own  equitable  jurisprudence,  it  is  not  too  much  to 
say  that  most  of  the  particular  rules  relating  to  titles  which, 
have  been  developed  from  these  principles  by  the  English. 
Court  of  Chancery  have  little  or  no  application  in  the 
United  States. 

§  77.  7.  Administration.—  Equity,  in  the  exercise  of  its 
unrestricted  powers,  has  jurisdiction  in  the  matter  of  set- 
tling the  personal  estates  of  deceased  persons;  and  in 
England  this  is  undoubtedly  the  most  important  branch  of 
the  equitable  jurisprudence, —  a  very  large  proportion  of 
the  suits  brought  in  the  Court  of  Chancery  are  administra- 
tion suits.  The  jurisdiction  may  theoretically  remain  in 
some  of  the  states  which  have  conferred  full  equity  powers 
upon  their  courts;  it  does  not  even  nominally  exist  in  the- 
others ;  and  it  is  practically  unknown  throughout  the  entire* 
country.  As  administered  in  England,  this  head  of  juris- 
diction includes  everything  pertaining  to  the  settlement  of 
decedents'  estates,  except  the  probate  of  wills,  and  the 
issue  of  letters  testamentary  and  of  administration;"  and 
there  is  a  considerable  discrepancy  between  the  legal  and 
the  equitable  rules  concerning  the  nature^  distribution,  and 
marshaling  of  assets.  In  the  American  states  these  matters 
are  all  governed  by  statutes,  which  determine  the  nature- 
and  regulate  the  application  and  distribution  of  assets  by 
fixed  and  certain  rules  binding  alike  upon  all  tribunals. 
Probate  courts  are  established  for  the  settlement  of  dece- 
dents' estates,  and  all  questions  arising  in  the  course  of  ad- 
ministration are  decided  by  them,  to  the  practical  exclusion^ 
of  the  equity  jurisdiction."'  Equitable  suits  growing  out  of 
pending  administrations  are  still  frequent,  but  they  are 

(a)  Tlie  text  is  quoted  in  Moulton  (b)  Tlie    text    is    cited    in    In    rer 

V.   Smith,    16   R.   I.    126,  27   Am.   St.  Cilley,  58  Fed.  977,  986    (proceedings 

Rep.  728,   12  Atl.  891;   cited,  Toland  to  establish  a  will  is  not  a  "suit  in 

V.  Earl,  129  Cal.  148,  61  Pac.  914,  79  equity"). 
Am.  St.  Rep.  100. 


§§  78,  79  EQUITY    JURISPRUDENCE.  84 

brought  for  some  special  and  partial  relief,  for  the  construc- 
tion of  a  will,  the  determination  of  a  controversy  arising 
with  respect  to  a  particular  legacy,  the  adjustment  of  con- 
flicting claims  to  a  particular  fund,  and  the  like.  It  is 
true  that  the  statutory  rules  for  the  settlement  of  estates 
are  largely  based  upon  the  principles  which  had  been  settled 
in  equity,  and  that  equitable  doctrines  are  constantly  en- 
forced by  the  courts  of  probate ;  but  it  is  no  less  true  that 
this  important  head  of  equity  jurisdiction  has  been  greatly 
resti'icted,  or  even  practically  abandoned,  in  all  the  states. 

§  78.  8.  Infants.—  Another  branch  of  the  jurisdiction 
equally  familiar  to  the  English  lawyer,  and  equally  un- 
known in  tlie  United  States.,  is  that  over  Infants.  When- 
ever an  infant  succeeds  to  property,  the  English  chancery 
takes  the  management  of  his  person  and  his  estate.  A 
proper  suit  having  been  commenced,  the  court  appoints 
a  guardian  (in  the  absence  of  a  testamentary  appointment), 
and  the  infant  is  thenceforward  a  "  ward  of  the  court," 
under  its  actual  paternal  care.  In  some  of  the  states,  the 
courts  possessing  full  equitable  jurisdiction  have  theoreti- 
cally the  power  to  appoint  a  guardian;  but  even  if  this 
power  should  be  exercised,  the  court  does  not  make  the  in- 
fant its  ward  and  extend  a  personal  oversight  over  him.  In 
this  matter,  however,  as  in  the  administration  of  decedents ' 
estates,  the  legislature  has  intervened,  and  the  probate 
courts  practically  appoint  all  guardians,  and  control  their 
official  actions.  Under  their  general  power  in  cases  of 
trust  and  of  accounting,  the  American  courts  of  equity  may 
give  all  proper  relief  to  wards  against  their  guardians;  but 
the  peculiar  jurisdiction  over  the  persons  and  estates  of 
infants  possessed  by  the  English  chancery  does  not,  to  any 
extent,  exist  in  the  American  equity  jurisprudence." 

^  70.  9.  Married  Women.—  One  of  tlie  most  important 
of  the  alterations  made  in  the  relations  between  law  and 
equity  is  that  cMuscd  by  tlio  legislation  concerning  married 

(a)  Tlic  text    is  cited    in    Mcs.sncr  v.  Giddings,  Gf)  Tex.   301. 


85  PRESENT   RELATIONS   OF    EQUITY   WITH    THE   LAW.         §  79 

women's  property  and  capacity  to  contract.  The  following 
outline  will  give  a  general  notion  of  this  legislation;  its 
details  must  be  postponed  for  a  subsequent  examination. 
Tn  nearly  all  the  states  the  common-law  rules  giving  the 
husband  an  ownership  or  interest  in  his  wife's  property 
have  been  abrogated;  the  wife  is  clothed  with  a  full  legal 
estate  in  and  right  to  all  the  property,  real  and  personal, 
which  she  has  at  the  time  of  the  marriage,  or  which  she 
may  acquire  by  inheritance,  by  will,  conveyance,  grant,  or 
gift,  during  its  continuance ;  and  she  has  generally  the 
entire  power  of  its  management  and  disposition,  as  though 
she  were  unmarried.  This  is  the  prevailing  type  of  statute, 
but  in  some  of  the  states  the  husband  must  join  in  a  deed 
or  mortgage  of  her  land,  and  in  a  very  few  he  is  still  en- 
titled to  its  possession.  In  addition  to  the  foregoing,  there 
are  certain  special  forms  of  legislation  prevailing  over  large 
portions  of  the  country.  A  number  of  the  western  and 
southwestern  states  have  substantially  adopted  the  French 
system  of"  community  of  assets,"  whereby  the  two  spouses 
are  co-owners  of  the  community  property,  which  is  under 
the  husband's  exclusive  management  during  their  joint 
lives.  With  reference  to  the  wife's  capacity  of  entering 
into  contracts,  there  are  two  general  types  or  classes  of  the 
legislation.  By  the  first,  which  is  confined  to  a  compara- 
tively few  states,  she  is  clothed  with  full  power  to  contract 
in  any  business,  trade,  or  profession  which  she  carries  on, 
and  also  with  reference  to  her  own  property,  and  the  latter 
embraces  all  agreements  made  for  the  benefit  of  her  prop- 
erty, and  all  agreements  made  for  any  purpose  which  are 
expressly  charged  upon  such  property.  All  these  con- 
tracts are  legal  in  every  sense  of  the  term,  and  not  equi- 
table. When  once  made,  they  become  personally  binding 
upon  her,  and  are  enforced  by  ordinary  legal  actions,  legal 
pecuniary  judgments,  and  executions.  By  the  second  class, 
which  prevails  in  most  of  the  states,  the  wife's  capacity  is 
limited  to  agreements  made  with  reference  to  her  prop- 
erty; these  contracts  are  wholly  equitable  in  their  nature 


§  80  EQUITY    JURISPRUDENCE.  86 

and  obligation,  and  can  only  be  enforced  by  an  equitable 
action  against  the  property  itself,  and  not  against  the  wife 
personally. 

§  80.  The  effect  of  this  legislation  upon  the  equity  juris- 
diction in  the  United  States  must  be  very  great.  In  the 
first  place,  the  married  woman's  equitable  separate  estate, 
and  the  doctrines  of  equity  directly  concerned  with  its 
maintenance,  are,  for  the  future  at  least,^  superseded.  The 
fabric  constructed  by  the  chancellors  with  so  much  acumen 
and  skill,  in  order  to  protect  the  natural  rights  of  wives 
which  the  law  ignored,  is  virtually  overthrown.  The  law, 
by  conferring  full  legal  owner sliip  upon  married  women, 
has  done  for  them  much  more  than  family  settlements  or 
nuptial  contracts  can  do,  even  when  enforced  by  courts  of 
-equity.  Equity  in  the  United  States  is  thus  at  one  blow 
relieved  of  a  subject-matter  which  in  England  occasions  a 
verj^  large  part  of  its  actual  jurisdiction.  With  respect  to 
the  contracts  of  married  women,  the  effect  of  the  modern 
legislation  has  been  directly  the  opposite  in  different  states. 
In  those  commonwealths  where  wives  have  been  clothed 
with  the  large  capacity  to  contract,  and  their  contracts  have 
been  made  legal,  the  equitable  jurisdiction  over  their  agree- 
ments has  been  virtually  abrogated.  Whatever  kind  of  con- 
tract is  within  the  power  of  a  married  woman  falls  under 
the  ordinary  jurisdiction  of  the  law  courts,  and  a  suit  in 
equity  to  enforce  it  as  a  charge  upon  any  specific  property 
belonging  to  her  would  be  useless,  even  if  it  could  now  be 
maintained.  In  all  the  other  states  where  the  wife's  con- 
tracts are  not  yet  made  legal,   the  equitable  jurisdiction 

1  These  statutes,  of  course,  do  not  affect  existing  estates  held  in  trust  for 
wives ;  but  in  many  of  the  states  they  authorize  the  wife,  by  means  of  an  order 
of  court,  to  convert  such  equitable  interests  into  legal  estates;  that  is,  to 
compel  a  convejiince  of  the  land  directly  to  themselves  by  the  trustees. 
Nor  do  these  statutes  forbid  the  creation  of  trusts  in  favor  of  married  women 
in  future,  and  such  trusts  arc  even  now  occasionally  created;  but  all 
necessity  for  tliem,  in  order  to  protect  wives  against  tlie  acts  or  defaults 
of  husbands,  is  removed,  and  the  only  advantage  of  such  a  trust  is  the  pro- 
tection of  the  land  against  the  acts  of  the  wives  themselves,  by  so  arranging 
.the  ownership  that  they  can  neither  alienate  nor  encumber  it. 


87  PKESENT  RELATIONS  OF  EQUITY  WITH  THE  LAW,       §§  81,  82 

is  to  a  certain  extent  enlarged.  It  is  no  longer  confined  in 
its  operation  to  her  separate  equitable  estate  held  in  trust 
for  her  by  an  express  or  implied  trustee ;  it  reaches  to  and 
operates  upon  all  her  property  of  which  she  holds  the  full 
legal  title  and  interest.  While  the  wife's  power  to  make 
contracts  which  shall  be  a  charge  upon  her  property  is 
not  increased,  the  property  thus  affected,  and  which  can  be 
reached  by  a  court  of  equity,  is  all  which  the  wife  holds  in 
her  own  name  and  right  by  a  legal  title. 

§  81.  10.  Statutory  Limitations  of  Equity.—  The  changes 
in  the  relations  of  law  and  equity  described  in  the  fore- 
going paragraphs  are  chiefly  those  resulting  from  altera- 
tions made  in  the  law  itself,  by  which  it  has  assumed  more 
of  an  equitable  character;  those  to  be  hereafter  described 
have  resulted  from  modifications  of  equity  jurisdiction  or 
jurisprudence.  In  several  of  the  states  the  full  equitable 
jurisdiction  exercised  by  the  English  chancery  has  never 
been  conferred  upon  any  tribunal.  A  partial  jurisdiction 
only  is  possessed  by  some  designated  court,  derived  from 
and  measured  by  statute,  defined,  limited,  confined  to  cer- 
tain enumerated  classes  of  subject-matters.  This  fact, 
which  is  most  important  to  members  of  the  profession  prac- 
ticing in  all  parts  of  the  country,  should  not  be  overlooked 
in  a  treatise  upon  equity  as  it  is  administered  in  the  United 
States. 

§  82.  11.  The  Auxiliary  Jurisdiction.*— A  distinct  depart- 
ment of  equity  jurisdiction  which  arose  at  an  early  day 
from  the  imperfection  of  the  legal  procedure  was  termed 
Auxiliary,  since  it  was  exercised,  not  to  obtain  any  equi- 
table remedy,  nor  to  establish  any  equitable  right  or  es- 
tate, but  to  aid  in  maintaining  a  legal  right,  and  in  prosecu- 
ting actions  pending  or  to  be  brought  in  a  court  of  law. 
This  ancillary  function  of  chancery  was  the  necessary  re- 
sult of  certain  inflexible  legal  rules  —  especially  those  con- 
cerning the  examination  of  witnesses  and  the  obtaining  of 

(a)  Sections  82  and  83  are  cited  in  Chapman  v.  Lee,  45  Ohio  St.  356,  13 
N.  E.  736. 


§  S2  EQUITY   JURISPRUDENCE.  88 

evidence  —  which  interfered  with  the  administration  of 
justice  in  the  common-law  courts.  The  most  important  and 
common  instances  of  this  auxiliary  jurisdiction  were  "  Suits 
for  Discovery  "  and  '*  Suits  for  Perpetuations  of  Testi- 
mony,'' or  for  taking  testimony  "  de  bene^  esse."  A  brief 
description  of  these  proceedings  —  once  so  essential  for  the 
attainment  of  justice  —  will  suffice  for  my  present  purpose. 
An  action  at  law  affecting  property  rights  is  pending  be- 
tween A  and  B.  Either  one  of  the  parties,—  I  will  assume 
it  to  be  the  defendant,  B,—  fearing  that  he  cannot  succeed 
without  the  help  of  facts  within  the  personal  knowledge  of 
his  adversary,  commences  a  suit  in  equity  against  A,  setting 
forth  in  his  bill  all  the  facts  of  the  case,  and  adding  thereto 
such  interrogatories  as  he  thinks  will  elicit  the  truth  from 
A.  A  is  thereupon  obliged  to  answer  this  bill  under  oath, 
fully,  and  without  reservation  or  evasion.  No  further  re- 
lief is  asked  by  the  plaintiff,  no  decree  is  made,  and  as  soon 
as  the  answer  is  complete,  the  function  of  the  equity  court 
is  ended.  Having  thus  obtained  the  written  statements  of 
his  adversary  under  oath,  B  can,  if  he  please,  use  them  as 
evidence  on  the  trial  of  the  action  at  law ;  and  under  certain 
circumstances  the  same  privilege  may  be  enjoyed  by  A  to 
use  his  answer  as  evidence  in  his  own  behalf.  Such  was 
the  nature  and  office  of  the  '*  Bill  of  Discovery  ";  and  for 
a  long  time  it  was  the  only  means  of  obtaining  the  evidence 
of  the  parties  for  use  on  the  trial  of  legal  actions.  The 
"  Suits  to  Perpetuate  Testimony  "  or  to  take  testimony 
de  bene  esse  were  special  modifications  of  this  contrivance. 
Where  a  dispute  with  respect  to  property  rights  existed 
between  A  and  B,  and  in  the  one  case  no  action  had  yet 
been  brought,  and  could  not  yet  be  brought,  while  in  the 
other  case  an  action  liad  already  been  commenced,  and  im- 
portant evidence  is  within  the  knowledge  of  persons  who, 
froMi  age,  sickness,  or  other  sufficient  cause,  may  not  be 
able  to  testify  upon  the  expected  trial,  either  of  the  con- 
testants may  bring  a  suit  in  equity  against  the  other,  not 
for  the  purpose  of  trying  and  deciding  the  matters  in  con- 


89  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  83 

troversy,  but  for  the  purpose  merely  of  eliciting  the  facts 
through  the  answer  and  of  taking  the  testimony  of  the  wit- 
nesses. The  answer  and  depositions,  being  preserved  in 
the  offices  of  the  chancery,  can  then  be  used  upon  the  trial 
of  the  legal  action,  whenever  it  shall  take  place.  In  other 
words,  a  court  of  equity  entertained  jurisdiction  of  the 
matter  to  the  extent  of  taking  the  evidence  and  putting  it 
into  a  permanent  form,  so  that  it  might  be  **  perpetuated  " 
for  future  use  in  a  court  of  law.^ 

§  83.  These  instances  of  auxiliary  jurisdiction  have 
wholly  disappeared  from  the  English  system  under  the 
late  reorganization  of  the  courts  and  the  procedure,^  and 
have  almost  entirely  disappeared  from  the  equity  as  ad- 
ministered in  the  United  States."  In  England,  in  the  states 
of  this  country  generally,  and  in  the  United  States  courts, 
parties  are  permitted  to  testify  in  their  own  behalf,  and 
are  required  to  testify  in  behalf  of  their  adversaries,  in  all 
actions  and  proceedings  of  a  civil  nature,  so  that  every 
ground  or  reason  for  a  *'  bill  of  discovery  "  has  been  re- 
moved, by  the  far  more  efficient  means  of  an  oral  and  per- 
sonal examination  conducted  by  counsel  in  open  court.  In 
the  states  which  have  adopted  the  reformed  American  pro- 
cedure, suits  for  mere  discovery  have  been  expressly 
abolished,  since  the  defendant  in  all  actions,  with  certain 
exceptions,  can  be  compelled  to  answer  under  oath  and  to 
testify  as  a  witness.     In  other  states  which  keep  up  the 

§  82,  1  See  post,  §§  238-242,  where  these  proceedings  are  more  fully  de- 
scribed. 

§  83,   1  See  Judicature  Act,  Rules  of  Procedure,  25-27. 

2  It  should  be  carefully  observed  that  this  proposition  is  confined  to 
"  bills  of  discovery,"  properly  so  called,  as  described  in  the  text.  The  ter)n 
"  discovery  "'  is  often  applied,  but  very  improperly  applied,  to  the  statements 
and  admissions  made  by  tlie  defendant  in  his  answer,  which  may  be  use- 
ful to  the  plaintiff  as  evidence  in  the  same  suit  in  Avhich  the  answer  is  filed. 
There  is  nothing  in  either  the  English  or  the  American  procedure  which  pre- 
vents the  plaintiff  in  any  action  from  taking  advantage  of  all  such  admis- 
sions and  disclosures  of  fact  which  the  defendant  in  that  action  may  make 
by  his  answer;  on  the  contrary,  such  disclosures  in  the  pleadings  are 
favored  and  sometimes  required.  But  this  is  not  "  discovery,"  technically 
and  properly  so  called. 


§  84  EQUITY    JURISPRUDENCE.  90 

two  jurisdictions  of  law  and  equity  administered  by  the 
same  tribunal,  discovery  as  an  auxiliary  to  trials  at  law  is 
no  longer  necessary;  and  is,  I  believe,  practically  obsolete 
even  where  not  formally  abrogated.^  '^  In  the  few  states 
which  still  retain  a  separate  Court  of  Chancery,  this  juris- 
diction may  be  nominally  preserved.  The  jurisdiction  to 
perpetuate  testimony  has  generally  been  supplanted  by 
simple,  inexpensive,  and  more  summary  and  efficient 
methods  prescribed  by  statute,  which  can  be  applied  to  all 
actions  for  the  purpose  of  obtaining  and  preserving  any 
species  of  evidence.  It  seems  to  be  still  retained,  however, 
upon  the  statute-books  of  several  of  the  states. 

§  84.  12.  The  Reformed  Procedure.—  The  most  radical 
and  extensive  alteration  in  the  relations  between  law  and 
equity  has  been  wrought  by  the  Reformed  American  Pro- 
cedure, which  prevails  in  more  than  half  the  common- 
wealths of  tliis  country,  and  all  the  essential  features  of 
which  are  enacted  by  the  recent  English  Judicature  Act.^ 
The  grand  underlying  principle  of  this  system  consists 
in  the  abolition  of  all  the  forms  of  legal  actions,  the  aboli- 
tion of  all  distinctions  between  actions  at  law  and  suits  in 
equity,  and  the  establishment  of  one  Civil  Action  for  the 
enforcement  of  all  remedial  rights.  In  and  by  this  one 
civil  action,  legal  and  equitable  causes  of  action,  legal  and 
equitable  defenses,  and  legal  and  equitable  remedies  may 
be  united,  and  may  be  determined  by  the  same  judgment. 
It  has  been  settled  by  numerous  decisions,  wherever  this 
system  exists,  that  the  legislative  changes,  being  confined 
to  procedure,  have  not  aifected  the  substantial  doctrines 
either  of  law  or  of  equity,—  those  doctrines  which  define 
and  declare  the  primary  rights  and  duties  of  individuals, 

3  In  Hcvciiil  of  tlic  .states  wliicli   have  not  adopted  the  reformed  procedure, 
"  billH  of  diwcovory  "  are  expressly  abolislicd. 
1  See  ante,  §  40,  note. 

(a)  The  text  i.s  cited  to  tliis  ef-  .'{;-,(;,  i:{  N.  E.  73G;  Turnbull  v.  Crick, 
feet  in  Chapman  v.  Lee,  45  Ohio  8t.       63  Minn.  91,  65  N.  W.  135. 


SI  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.         §  85 

and  the  remedies  or  reliefs  to  which  they  may  be  entitled. 
This  proposition  must,  however,  be  accepted  and  under- 
stood with  its  proper  and  necessary  limitations.  The  legis- 
lation has  done  much  more  than  alter  the  mere  external 
forms  and  modes  of  procedure;  it  has  necessarily  affected 
to  a  certain  extent  the  equity  jurisdiction  in  the  granting 
of  its  remedies,  and  has  in  some  instances  rendered  the 
exercise  of  that  jurisdiction  unnecessary,  by  removing  the 
ground  and  occasion  for  the  remedies.  In  other  words,  tlie 
legislation  has  made  it  unnecessary,  under  certain  circum- 
stances, to  bring  a  suit  in  equity  and  to  obtain  specific  equi- 
table relief.  The  most  important  of  these  results  I  shall 
point  out  in  a  very  brief  manner.* 

§  85.  In  the  first  place,  the  permission  to  set  up  an  equi- 
table defense  against  a  legal  cause  of  action  has  in  a  great 
number  of  instances  removed  all  occasion  for  bringing  a 
suit  in  equity  by  which  the  equitable  right  of  the  defend- 
ant constituting  his  defense  may  be  established  and  the 
prosecution  of  the  legal  action  may  be  restrained.  I  take 
a  simple  example  of  a  very  large  class  of  cases.  A,  the 
vendor  in  a  contract  for  the  sale  of  land,  brings  an  action  of 
ejectment  against  B,  the  vendee,  who  is  in  possession,  and 
having  the  legal  title,  must  of  course  recover  at  law.  B 
was  therefore  obliged  to  file  a  bill  in  equity  against  A,  and 
obtain  thereby  a  decree  of  specific  performance,  and  in  the 
mean  time  an  injunction  restraining  the  further  prosecu- 
tion of  the  action  at  law.  Having  obtained  a  conveyance  of 
the  legal  title  under  his  decree,  B  would  be  in  a  position  to 
defend  the  action  of  ejectment,  or  any  subsequent  one  which 
might  be  brought  against  him.  By  the  reformed  procedure, 
when  the  vendor  commences  a  legal  action  to  recover  pos- 
session of  the  land  from  the  vendee,  the  latter  need  not 
resort  to  a  second  equitable  suit,  nor  obtain  an  injunction. 
The  whole  controversy  is  determined  in  the  one  proceeding. 
B's  equitable  estate  and  right  to  a  conveyance  is  not  only 

(a)    See  post,    §   354,  and   note. 


§  86  EQUITY   JUKISPRUDENCE.  92' 

a  negative  defense  to  A's  legal  cause  of  action,  but  entitles 
B  in  the  same  action  to  assume  the  position  of  an  actor, 
and  to  obtain  the  full  affirmative  relief  which  he  would 
formerly  have  obtained  by  his  separate  bill  in  equity,—  a 
decree  for  a  specific  performance  and  a  conveyance  of  the 
legal  estate.  Although  no  substantial  doctrines  of  equity 
have  been  altered,  still,  the  vendee  is  no  longer  compelled 
in  such  circumstances  to  sue  in  equity,  nor  to  demand  the 
ancillary  remedy  of  an  injunction. 

§  86.  This  familiar  example  may  be  generalized  into 
the  following  universal  proposition :  Whenever,  under  the 
former  procedure,  one  party,  A,  had  a  legal  estate  or 
right  which  entitled  him  to  recover  in  an  action  at  law 
brought  against  B ;  and  where  B,  having  no  legal  defense 
to  this  action,  was  still  possessed  of  an  equitable  estate  or 
right  which  entitled  him  to  some  particular  affirmative 
equitable  remedy, —  as,  for  example,  a  specific  performance, 
a  reformation  or  correction,  a  cancellation,  a  rescission,  etc., 
—  which  remedy  when  obtained  would  clothe  him  with  the 
legal  estate  or  right,  and  enable  him  thereby  to  defeat 
the  plaintiff  A's  action  at  law;  and  where,  under  these  cir- 
cumstances, B  would  be  obliged  to  go  into  a  court  of  equity 
jurisdiction,  and  file  a  bill  therein  against  A,  and  obtain  a 
decree  granting  the  desired  equitable  relief,  and,  as  an  in- 
cident thereto,  procure  an  injunction  restraining  A's  action 
at  law,—  in  all  such  cases,  the  necessity,  and  even  the  pro- 
priety, of  bringing  the  separate  equity  suit  and  enjoining 
the  legal  action  are  completely  obviated,  since  B  can  set 
up  all  his  equity  by  way  of  defense  or  counterclaim,  recover 
a  judgment  for  the  affirmative  relief  which  he  seeks,  and 
defeat  the  action  brought  against  him  by  A,  in  that  very 
action  itself.  It  would  not  be  correct  to  say  that  the  equity 
jiii-isdiction  has  been  abrogated  in  tliis  class  of  cases,  since 
tlu'  defendant  B  might  possibly  follow  the  former  method, 
and  bj'ing  a  separate  action  instead  of  setting  up  his  equi- 
table rights  as  a  defense  and  counterclaim;  but  this  cir- 
euitous  mode  of  proceeding  is  seldom  adopted,  and  will 


:93  PRESENT    EELATIOXS    OF    EQUITY    WITH    THE    LAW.  §  87 

ultimately,  perhaps,  be  prohibited  by  tlie  courts,  so  that 
this  direct  equity  jurisdiction  will  doubtless,  in  time,  be- 
come obsolete.^ " 

§  87.  One  other  equally  important  change  produced  by 
the  reformed  procedure  should  be  mentioned.  Under  the 
system  of  separate  jurisdiction,  when  a  person  possesses 
an  equitable  right  or  estate  entitling  him  to  some  particular 
equitable  remedy  which,  w^hen  obtained,  would,  in  turn, 
confer  upon  him  a  legal  right  or  estate  in  respect  to  the 
subject-matter,  and  enable  him  therewith  to  maintain  an 
action  at  law,  he  is  obliged  (except  in  a  few  special  cases) 
first  to  bring  a  suit  in  equity  and  procure  a  decree  estab- 
lishing his  right  and  granting  him  the  needed  equitable 
remedy,  which  clothes  him  with  the  legal  title  or  estate. 
Having  thus  acquired  a  legal  basis  for  his  demand,  he  must 
go  into  a  court  of  law  and  enforce  his  newly  perfected  legal 
demand  by  means  of  a  legal  action.  As  familiar  illustra- 
tions, if  a  person  holds  an  equitable  estate  under  a  land  con- 
tract, he  must  compel  a  specific  performance  in  equity  be- 
fore he  can  recover  possession  of  the  land  at  law;  if  he 
holds  the  equitable  estate  under  an  implied  trust,  he  must 
in  general  obtain  a  transfer  of  the  legal  title  from  the  trus- 

1  The   following  cases   illustrate  the  operation  of   equitable   defenses:     Dob 
son  V.  Pearce,  12  N.  Y.  156,  62  Am.  Dec.  152;  Pitcher  v.  Hennesey,  48  N.  Y. 
415;    Heermans   v.    Robertson,    64   N.    Y.    332;    Crary   v.    Goodman,    12   N.   Y 
266,  268,  64  Am.  Dec.  506;    Hoppough  v.   Struble,  60  K  Y.  430;    Bartlett  v 
Judd,  21  N.  Y.  200,  203,  78  Am.  Dec.  131;  Cavalli  v.  Allen,  57  X.  Y.  508,  514 
Andrews  v.  Gillespie,   47   N.  Y.   487,  490;    McClane  v.  White,  5   Minn.   178 
Richardson  v.  Bates,  8  Ohio  St.  257,  264;   Petty  v.  Malier,   15  B.  Mon.  604 
Harris   v.    Vinyard,   42    Mo.   568;    Onson   v.    Gown,    22   Wis.    329;    Talbot   \ 
Singleton,  42  Cal.  390,  395,  396;  Bruck  v.  Tucker,  42  Cal.  346,  352;  Lombard 
V.  Cowham,  34  Wis.  486,  492.     There  may  still  be  cases  in  which  the  defend- 
ant in  the  action  at  law  cannot  obtain  full  relief  by  means  of  an  equitable 
defense,  and  is  obliged  to  bring  a  separate  suit  in  equity,  and  to  obtain  his 
equitable  remedy  by  an  affirmative  decree,  and  in  the  mean  time  an  injunc- 
tion restraining  the  action  at  law.     See  this  question  quite  fully  discussed  by 
Folger,  J.,  in  Erie  Railway  Co.  v.  Ramsey,  45  N.  Y.  637. 

(a)  The  text  is  cited  to  the  eflfect       ment,  under  the  reformed  procedure: 
that  fraud  in   obtaining  a   judgment       Hogg  v.  Link,  90  Ind.  346,  350. 
la  an  equitable  defense  to  such  judg- 


§  87  EQUITY    JURISPRUDENCE.  94 

tee  before  he  can  maintain  ejectment  for  the  possession; 
if  the  instrument  under  which  he  claims  is  infected  with  mis- 
take, and  his  full  rights  under  it  depend  upon  a  correction 
of  the  mistake,  he  must  obtain  the  remedy  of  reformation 
or  re-execution  in  equity,  and  may  then  enforce  his  per- 
fected legal  right  by  the  proper  action  at  law ;  if  his  estate 
in  land  is  purely  an  equitable  one  because  a  deed  voidable 
through  fraud  has  conveyed  the  legal  title  to  another  per- 
son, the  equitable  remedy  of  cancellation  or  rescission  must 
be  granted  before  a  legal  action  for  the  possession  can  be 
successful.  Wherever  the  reformed  procedure  has  been 
administered  according  to  its  plain  intent,  the  necessity  of 
this  double  judicial  proceeding  has  been  obviated;  indeed, 
if  the  true  spirit  of  the  new  procedure  is  accepted  by  the 
courts,  such  a  separation  of  equitable  and  legal  rights  and 
remedies,  and  their  prosecution  in  distinct  actions,  will  not 
perhaps  be  allowed.  The  jjlaintiff  brings  one  civil  action 
in  which  he  alleges  all  the  facts  showing  himself  entitled 
to  both  the  equitable  and  the  legal  reliefs  needed  to  com- 
plete his  legal  right,  and  asks  and  obtains  a  double  judg- 
ment, granting,  first,  the  proper  equitable  remedy,  and 
secondly,  the  legal  remedy,  by  which  his  juridical  position 
with  respect  to  the  subject-matter  is  finally  perfected;^" 
or  he  may  simply  demand  and  recover  a  judgment  confer- 
ring only  the  final  legal  remedy,  the  preliminary  equitable 
relief  being  assumed  as  an  essential  prerequisite  to  the 
recovery,  but  not  being  in  terms  awarded  by  the  court.^ 

1  As  illu.stiiitions,  ^w  Laub  v.  Bufkniillor,  17  N.  Y.  G20,  626;  Lattin  v. 
McCarty,  41  N.  Y.  107,  109;  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  Co.,  23  N.  Y. 
357;  Cone  v.  Niagara  Ins.  Co.,  60  N.  Y.  619;  Turner  v.  Pierce,  34  Wis. 
658,  665;  Gray  v.  Dougherty,  25  Cal.  266;  Henderson  v.  Dickey,  50  Mo. 
161,  165;  Guernsey  v.  Am.  Ins.  Co.,  17  Minn.  104,  108.  But  see  Super- 
visors V.  Decker,  30  Wis.  624. 

2  See  Bidwelli  V.  Astor  Ins.  Co.,  16  N.  Y.  263,  267;  Pliillips  v.  Gorham, 
17  N.  Y.  270;  Caswell  v.  West,  3  Thomp.  &  C.  383;  McNeady  v.  Hyde, 
47  Cal.  481,  483;  Stcnihcrger  v.  McCiovern,  56  N.  Y.  12,  21. 

(a)  The  text  is  quoted  and  fol  Wash.  74,  70  Pac.  204,  for  the  facts 
lowed    in    Browder    v.     I'hinney,     30       of  winch  see  post,  ft  183,  note. 


95  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  SS 

It  follows,  as  an  incident  of  this  union  of  rights  and  reme- 
dies in  one  action,  that  all  occasion  for  the  ancillary  or 
provisional  equitable  remedy  of  injunction  to  restrain  the 
defendant  from  proceeding  at  law  is  often,  and  indeed  gen- 
erally, avoided  in  this  class  of  cases, 

§  88.  The  results  of  this  reform  in  the  procedure  might 
be  described  with  much  more  detail ;  but  I  have  already 
accomplished  my  purpose,  which  was  to  indicate  some  of 
the  great  changes  made  by  judicial  decisions  and  by  acts 
of  the  legislatures  in  the  relations  formerly  subsisting  be- 
tween law  and  equity,  and  in  the  body  itself  of  equity  juris- 
prudence. The  foregoing  sketch,  mere  outline  as  it  is,  also 
shows  very  plainly  that  a  treatise  which  would  accurately 
represent  to  the  reader  the  equity  jurisprudence  of  the 
United  States  must  conform  to  modern  facts,  rather  than 
follow  ancient  traditions.  It  must  recognize  the  existing 
condition,  both  of  the  law  and  of  ecjuit}',  tlie  limitations 
upon  the  chancery  jurisdiction,  the  alterations  made  by 
American  legislation,  institutions,  and  social  habits.  Man}' 
doctrines  and  modes  of  applying  the  jurisdiction  which 
were  important  at  an  earlier  day,  and  are  perhaps  still 
prominent  in  England,  have  become  practically  obsolete 
in  this  country,  while  others  have  risen  in  consequence,  and 
are  constantly  occupying  the  attention  of  the  courts.  It  is 
my  purpose  to  discuss  and  describe  the  equity  jurisprudence 
as  viewed  in  this  light,  and  to  present  the  system  which  is 
now  administered  by  the  state  and  national  courts  of  the 
United  States.  It  is  true  that  the  fundamental  principles 
are  the  same  as  those  which  were  developed  through  the 
past  centuries  by  the  English  chancery;  but  the  application 
of  these  principles,  and  the  particular  rules  which  have 
been  deduced  from  them,  have  been  shaped  and  determined 
by  modern  American  national  life,  and  have  received  the 
impress  of  the  American  national  character. 


§§  89,  90  EQUITY    JUKISPEUDENCE.  96 

SECTION  IV. 

THE  CONSTITUENT  PARTS  OF  EQUITY. 

ANALYSIS. 

§  89.     Object    of   this    section. 
§§  90,91.     Rights  are  either  ''primary"  or  "  remedial";  each  described. 
§  92.     Divisions  of  "primary"  rights,  viz.:    1.   Those  concerned  with 
personal  status;  2.  Those  concerned  with  things. 
§§  93-95.     Two    general    classes    of    rights    concerned    with    things,    viz.: 

'■  real  "  and  "  personal  " ;  each  described. 
§§  96,  97.     What  of  these  kinds  of  rights  are  embraced  within  equity;  both 
"  primary  "   and   "  remedial." 
§§  98-107.     I.  Equitable  primary  rights,  kinds  and  classes  of. 
^§   108-116.     II.  Equitable  remedial  rights,  kinds  and  classes  of. 

§   112.     General  classes  of  equitable  remedies. 
H   113-116.     Mode   of   administering   them. 

§   116.     How  far  legal  and  equitable  modes  can  be  combined. 
§   117.     Recapitulation. 

§  89.  Object  of  This  Section.—  I  have  thus  far  described 
the  historical  origin  of  equity,  and  its  general  nature  con- 
sidered simply  as  a  separate  department  of  the  national  ju- 
risprudence, and  in  its  relations  with  the  other  department 
called  the  *'  law."  It  is  necessary  now  to  make  a  closer 
investigation  into  the  internal  elements  and  features  of 
equity,  and  to  determine  its  constituent  parts,—  the  charac- 
ter of  the  rights  and  duties  created  by  its  doctrines  and 
rules. 

§  90.  Classes  of  Rights. —  Laying  out  of  view  the  rules 
which  form  the  '*  public  law  "  and  the  "  criminal  law,"  all 
the  commands  and  rules  which  constitute  the  ' '  private  civil 
law  "  create  two  classes  of  rights  and  duties,  the  ''  pri- 
mary "  and  the  *'  remedial."  The  primary  rights  and  du- 
ties form  the  body  of  the  law;  they  include  all  the  rights 
and  obligations  of  property,  of  contract,  and  of  personal 
status;  they  are  the  very  end  and  object  of  all  law.  If 
mankind  were  so  constituted  that  disobedience  to  legal  rules 
was  impossible,  then  the  law  would  be  entirely  made  up  of 
the  rules  which  create  these  primary  rights  and  duties. 


97  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  91 

But  since  all  these  primary  rights  and  duties  may  be  vio- 
lated, another  branch  of  the  law  becomes  necessary,  which 
may  enforce  obedience  by  means  of  the  *'  Kemedies  "  which 
it  provides.  All  possible  remedies  are  either  substitutes  or 
equivalents  given  to  the  injured  party  in  place  of  his  origi- 
nal primary  rights  which  have  been  broken,  or  they  are  the 
means  by  which  he  can  maintain  and  protect  his  primary 
rights  in  their  actual  form  and  condition.  Remedial  rights 
are  those  which  a  person  has  to  obtain  some  appropriate 
remedy  when  his  primary  rights  have  been  violated  by  an- 
other. Remedial  duties  are  those  devolving  upon  the 
wrong-doer  in  such  case  to  give  the  proper  remedy  pre- 
scribed by  law. 

§  91.  Primary  and  remedial  rights  and  duties  stand  to- 
wards each  other  in  the  following  relations :  Every  com- 
mand or  rule  of  the  private  civil  law  creates  a  primary 
right  in  one  individual,  and  a  primary  duty  corresponding 
thereto  resting  upon  another  person  or  number  of  persons. 
These  rights  and  duties  are,  of  course,  innumerable  in  their 
variety,  nature,  and  extent.  If  a  person  upon  whom  a  pri- 
mary duty  rests  towards  another  fails  to  perform  that  duty, 
and  thereby  violates  the  other's  primary  right,  there  at 
once  arise  the  remedial  right  and  duty.  The  one  whose 
primary  right  has  been  violated  immediately  acquires  a 
secondary  right  to  obtain  an  appropriate  remedy  from  the 
wrong-doer,  while  the  wrong-doer  himself  becomes  sub- 
jected to  the  secondary  duty  of  giving  or  suffering  such 
remedy.^  It  is  the  function  and  object  of  courts,  both  of 
law  and  of  equity,  to  directly  enforce  these  remedial  rights 
and  duties  by  conferring  the  remedies  adapted  to  the  in- 
jury, and  thus  to  indirecthj  maintain  and  ])reserve  inviolate 
the  primary  rights  and  duties  of  the  litigant  parties.  It  is 
plain  from  this  analysis  that  the  nature  and  extent  of  reme- 
dial rights  and  duties,  and  of  the  remedies  themselves,  must 

1  See  2  Austin  on  Jurisprudence,  pp.  450,  453;  vol.  3,  p.  162;  Pomeroy 
•on  Specific  Performance  of  Contracts,  §  1;  Pomeroy  on  Remedies  and 
Remedial  Rights,  §§  1,  2. 

Vol.  I  — 7 


8  92  EQUITY   JURISPRUDENCE.  98 

depend  upon  two  distinct  factors  taken  in  combination^ 
namely,  the  nature  and  extent  of  the  primary  rights  which 
are  violated,  and  the  nature  and  extent  of  the  wrongs  in 
and  by  which  the  violation  is  effected.  The  same  primary 
right  may  be  broken  by  many  kinds  of  wrong-doing;  and 
the  same  wrongful  act  or  default  may  invade  many  differ- 
ent rights.  The  wrongs  which  are  breaches  of  primary 
rights  m.aj  be  either  positive  acts  of  commission  or  nega- 
tive omissions;  their  variety,  form,  and  nature  are  prac- 
tically unlimited,  and  no  classification  of  them  is  necessary 
for  the  purposes  of  this  discussion. 

§  92.  Primary  Rights. —  A  very  general  analysis  and 
classification  of  Primary  Eights  and  Duties  will,  however, 
be  essential  to  an  accurate  notion  of  the  constituent  parts 
of  equity.  The  rules  and  their  resulting  primary  rights 
and  duties  which  make  up  the  private  municipal  law  — 
omitting,  as  before  stated,  the  public  and  the  criminal  law 
—  fall  by  a  natural  line  of  separation  into  two  grand  divi- 
sions, namely :  1.  Those  directly  and  exclusively  concerned 
witli  or  relating  to  Persons;  2.  All  the  remaining  portions, 
which,  in  a  broad  sense,  relate  to  or  are  concerned  with 
Things,  The  first  of  these  divisions,  under  a  natural  and 
logical  system  of  arrangement,  comprises  only  those  rules 
tlie  exclusive  object  of  which  is  to  define  the  status  of  per- 
sons ;  or  in  other  words,  those  which  determine  the  capaci- 
ties and  incapacities  of  persons  to  acquire  and  enjoy  legal 
rights,  and  to  be  subject  to  legal  duties.^  In  the  United 
States,  where  nearly  all  distinctions  of  class  have  been 
abolislied.  and  all  persons  siii  i^{ris  stand  upon  an  equality 
witli  respect  to  their  capacity  of  enjoying  civil  rights,  and 
of  being  subject  to  civil  duties,  this  division  contains  but  a 
very  small  part  of  the  law,  as  compared  with  the  corre- 
s[)ondiiig  (l('i)Mrtment  in  the  Roman  law,  or  even  in  the 
existing  law  of  many  European  countries.    It  also  follows, 

1  Sec  2  Austin  on  .Jiiris{)ni(lcncc,  i>p.  10,  ;]82,  MHO,  nolo,  412;  vol.  3,  pp. 
170    172. 


99  THE    CONSTITUENT    PARTS    OF    EQUITY.  §§  93,'  94^ 

as  a  necessary  consequence  of  this  principle  of  classifica- 
tion, that  most  of  the  matter  which  Blackstone,  and  after 
him  Kent  and  other  institutional  writers,  have  treated  as 
belonging  to  the  so-called  "  Rights  of  Persons,"  has  been 
misplaced.  Such  matter  has  no  connection  whatever  with 
personal  status  or  capacity,  and  if  any  scientific  or  consist- 
ent system  of  arrangement  is  pursued,  it  plainly  belongs 
among  those  rules  which  relate  to  Things." 

§  93.  The  primary  rights  embraced  in  the  second  grand" 
division  of  the  law  —  those  concerned  with  or  relating  to 
Things  —  are  naturally  separated  into  two  principal 
classes,  namely.  Rights  hi  rem,  or  Real  rights,  and  Rights 
in  personam,  or  Personal  rights.  Rights  in  rem,  or  real. 
rights,  are  those  which,  from  their  very  nature,  avail  to 
their  possessor  against  all  mankind,  and  a  correlative  duty 
rests  alike  upon  every  person  not  to  molest,  interfere  with, 
or  violate  the  right.  Rights  in  personam,  or  personal 
rights,  are  those  which  avail  to  their  possessor  against  a 
specified,  particular  person,  or  body  of  persons  only,  and 
the  correlative  duty  not  to  infringe  upon  or  violate  the 
right  rests  alone  upon  such  specified  person  or  body  of 
persons. 

§  94.     Real  Rights. —  The  first  of  these  classes,  the  rights 
in  rem,,  embraces  three  distinct  genera,  which  differ  from 

2  Simply  as  illustrations  of  this  improper  classification,  and  without  at- 
tempting to  enumerate  all  the  cases,  I  mention  the  following:  All  the  rules 
concerning  the  property  and  contracts  of  married  women,  and  the  contracts 
actually  made  by  infants,  have  no  proper  place  in  the  division  which 
treats  of  the  "  Law  as  to  Persons  " ;  they  form  a  part  of  the  law  concerning 
Things,  in  exactlj^  the  same  manner,  and  for  exactly  the  same  reason,  that 
the  rules  regulating  the  property  and  contracts  of  adult  men  or  of  single 
women  belong  to  the  law  of  things.  The  same  is  true  of  the  rules  defining 
rights  which  Blackstone  calls  "  absolute  rights  of  persons,"  but  which  are- 
no  more  absolute  than  their  rights  of  property,  or  rights  growing  out  of  con- 
tract. Tlie  rules  defining  the  rights  and  duties  existing  between  husband 
and  wife,  parent  and  child,  guardian  and  ward,  master  and  servant,  alsa 
come  within  the  law  concerning  things,  as  truly  as  do  those  which  define  the- 
rights  and  duties  existing  between  the  parties  to  any  and  every  contract. 
The  subject  of  corporations,  with  all  of  its  ramifications  involving  every 
department  of  the  private  Municipal  Law,  has  not  even  the  semblance  of 
belonging  to  the  division  which  comprises  the  "  Law  concerning  Persons." 


§  95  EQUITY   JUKISPEUDElSrCE.  100 

each  other  in  the  subject-matter  over  which  the  rights  ex- 
tend, but  not  in  the  essential  nature  of  the  rights  them- 
selves. These  three  genera  are:  1.  Eights  of  property  of 
every  degree  and  kind  over  lands  or  chattels,  things  real 
or  things  personal;  2,  The  rights  which  every  person  has 
over  and  to  his  own  life,  body,  limbs,  and  good  name;  3. 
The  rights  which  certain  classes  of  persons,  namely,  hus- 
bands, j)arents,  and  masters,  have  over  certain  other  per- 
sons standing  in  domestic  relations  with  themselves, 
namely,  wives,  children,  and  servants  and  slaves.  In  all 
kinds  and  degrees  of  property  the  right  plainly  avails  to 
its  possessor  over  the  subject-matter  —  the  land  or  the 
chattel  —  against  all  mankind,  and  a  corresponding  duty 
rests  upon  every  human  being  not  to  interfere  with  or 
molest  him  in  the  enjojTnent  of  the  property.  The  right 
which  every  person  has  over  his  own  life,  body,  limbs,  or 
good  name  is  of  the  same  general  nature.  It  imposes  an 
equal  duty  upon  every  one  not  to  injure,  or  in  any  manner 
disturb  or  molest,  the  possessor  of  the  right  in  the  free  use 
and  enjojTnent  of  his  own  life,  body,  limbs,  or  good  name. 
The  rights  of  the  husband,  parent,  or  master  over  the  wife, 
child,  or  servant  are  in  our  law  very  meager  and  limited, 
but  so  far  as  they  exist  at  all,  they  resemble  the  more  com- 
plete rights  of  property,  because  they  avail  against  all  man- 
kind, and  impose  an  equal  duty  upon  every  human  being. 
Thus  the  husband  is,  by  virtue  of  this  right,  entitled  to  the 
society  of  his  wife,  and  the  father  is  entitled  to  the  services 
of  his  infant  children,  while  a  duty  rests  upon  every  person 
not  to  violate  these  rights  by  enticing  away,  seducing,  or 
injuring  the  wife  or  child.  This  latter  group  of  rights  must 
not  1)0  confounded  with  those  which  the  husband  and  wife, 
jjaront  and  ciiild,  niastci-  and  servant,  hold  (if/ai)h<!t  each 
other,  and  wliich  resemble  in  their  nature  the  rights  arising 
from  contract. 

§  95.  Personal  Rights. —  The  second  class,  rights  in  per- 
sonam, porsonji!  rights  (caMcd  l)y  tlio  l^.oman  law  **  Obliga- 
tions ")   includes  two  distinct  genera,  namely:     1.  Eights 


101  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  96 

arising  from  contract ;  and  2.  Rights  arising,  not  from  con- 
tract, but  from  some  existing  relation  between  two  specific 
persons  or  groups  of  persons,  which  is  generally  created  by 
the  law.  In  every  case  of  contract  the  right  is  held  by  one- 
of  the  contracting  parties  and  avails  to  him  against  the 
other  party  alone,  while  the  corresponding  duty  rests  only 
upon  that  other  party,  and  not  upon  every  human  being.. 
As  contracts  must  of  necessity  be  made  between  specified 
determinate  persons,  it  follows  that  the  rights  and  duties 
arising  from  contract  must  always  avail  against  and  rest 
upon  some  particular,  definite  person  or  number  of  persons. 
The  same  is  true  of  the  rights  and  duties  arising  from 
special  relations  existing  between  particular  persons,  cre- 
ated, not  by  contract,  but  by  the  law.  The  legal  effect  of 
these  special  relations  is  so  similar  to  that  produced  by 
contract,  that  the  rights  flowing  from  them  were  said  by 
the  Roman  law  to  arise  from  quasi  contract  {quasi  ex  con- 
tractu). The  important  and  ordinary  examples  of  this 
genus  are  the  rights  and  duties  against  each  other  subsist- 
ing between  husband  and  wife,  parent  and  child,  guardian 
and  ward,  executors  or  administrators  and  legatees,  dis- 
tributees, or  creditors,  and  in  many  cases  between  trustees. 
and  cestuis  que  trustent.  This  general  classification  em- 
braces all  primary  rights  and  duties,  both  legal  and  equi- 
table, which  belong  to  the  private  civil  law. 

§  96.  Equitable  Rights. —  The  foregoing  analysis  will  aid 
us  in  forming  a  clear  and  accurate  conception  of  the  con- 
stituent elements  which  make  up  the  equity  .iurisprudence. 
Comparing  the  two  great  divisions  of  the  private  municipal 
law,  law  and  equity,  are  they  antagonistic,  or  simply  com- 
plementary to  each  other?  or  does  one  merely  occupy  a 
sphere  which  the  other  does  not?  Are  the  rules  creating 
the  primary  rights  and  duties  embraced  in  the  law  different 
from  the  same  class  of  rules,  rights,  and  duties  embraced 
in  equity?  Or  does  the  distinction  lie  solely  in  the  remedial 
rights  and  remedies  which  arise  from  the  violation  of  rules 
common  to  both,  and  in  the  judicial  modes  by  which  these 


.§  97  EQUITY    JURISPRUDENCE.  102 

remedies  are  obtained?  Equity  does  certainly  deal  largely 
in  remedies  and  rights  to  them,  and  the  opinion  has  been 
maintained  by  some  modern  writers,  that  it  consists  in  noth- 
ing else;  that  all  the  rights  peculiar  to  it  and  which  it  con- 
fers are  remedial  rights, —  rights  to  obtain  certain  forms  of 
remedy  unknown  to  the  law.  That  this  opinion  is  a  mis- 
taken one  is  clearly  demonstrated  by  an  examination  of  the 
doctrines  and  rules  of  equity  as  now  established,  and  the 
results  which  they  have  produced. 

§  97.  Equity,  as  a  branch  of  the  national  jurisprudence, 
and  so  far  as  it  differs  from  the  law,  consists  in  fact  of  two 
parts,  two  different  kinds  of  rules  and  rights.  First,  it 
contains  a  mass  of  rules  which  create  primary  rights  and 
duties, — entirely  irrespective  of  the  remedies, —  which  are 
different  from  the  corresponding  rules,  rights,  and  duties, 
with  respect  to  the  same  subject-matter,  contained  in  and 
enforced  by  the  law.  Secondly,  it  contains  another  mass  of 
rules  defining  and  conferring  a  variety  of  special  remedies 
and  remedial  rights,  both  of  which  are  to  a  very  great  ex- 
tent unknown  to  the  law.  These  remedies  and  rights  to 
them  are  peculiarly  ''  equitable,"  in  contradistinction  to 
those  of  the  law,  and  irrespective  of  any  difference  in  the 
primary  rights  for  the  violation  of  which  they  are  granted. 
There  may  be  four  kinds  of  cases  arising  in  the  administra- 
tion of  the  equity  jurisdiction:  1.  The  primary  riglit  of 
the  complaining  party  which  has  been  broken  may  be  purely 
legal, —  that  is,  a  right  which  the  rules  of  law  confer, — 
while  his  remedial  right  and  the  remedy  which  he  obtains 
may  be  entirely  equitable,  recognized,  and  given  by  equity 
alone. ^     2.  His  primary  right  which  has  been  violated  may 

1  I  ;,'iv<'  siiiij)!!'  ilustrations  of  these  four  classes.  Of  the  first  class  is  a 
Huit  l)y  oDc  who  holds  the  legal  title  to  land, —  his  primary  right,  of  course, 
Ix-irig  h'gal, —  to  restrain  tho  commission  of  waste  upon  it,  or  of  trespasses 
doing  irreparable  daniage;  also  tlio  suit  by  the  owner  in  fee  of  land  in  pos- 
Hession,  to  declare  his  own  title  against  other  claimants  not  in  possession, 
whether  tlieir  claims  be  legal  or  ecjuitabie.  This  latter  kind  of  remedy  is 
given  by  Htatute  in  many  states.  It  is  very  plain  in  these  cases  that  the 
plaint) fF's  estate  and  rigiit  are  wholly  legal,  and  the  remedies  are  clearly 
equitable.     The  instances  of  this  class  are  very  numerous. 


103  THE    CONSTITUENT    PARTS    OF    EQUITY,  §  98 

be  one  which  the  rules  of  equity  alone  create,  while  his 
remedial  right  and  remedy  may  also  be  only  known  to 
equity.^  3.  Plis  primary  right  broken  may  be  entirely  equi- 
table, but  his  remedial  right  and  remedy  may  be  legal,  such 
as  are  recognized,  enforced,  and  granted  by  the  la"w.^  4.  In 
i3ome  cases,  few  in  number,  his  primary  right  may  be  legal, 
while  his  remedial  right  and  remedy  are  also  legal,  such 
as  are  administered  by  courts  of  law.^  The  peculiar  feature 
which  distinguishes  equity  from  the  law  does  not  therefore 
consist  solely  in  the  fact  that  it  possesses  remedies  which 
the  law  does  not  admit,  nor  solely  in  the  fact  that  it  creates 
and  confers  primary  rights  and  duties  different  from  any 
which  the  law  contains,  but  in  both  these  facts  combined. 
These  two  elements  will  be  examined  separately. 

§  98.  I.  Equitable  Primary  Rights. —  Equity  consists  in 
part  of  rules  creating  primary  rights  and  duties  differing 
from  those  relating  to  the  same  subject-matter,  which  are 
purely  legal.     Recurring  to  the  classification  given  in  a 

2  As  simple  illustrations:  A  suit  by  the  vendee  in  a  parol  contract  for  the 
sale  of  land  part  performed,  to  obtain  a  specific  performance.  The  right  and 
•estate  under  the  contract  are  recognized  by  equity  alone,  and  the  remedy 
is  purely  equitable.  Also  a  suit  brought  by  a  mortgagor  of  land  who  has 
made  default,  to  redeem.  According  to  the  original  legal  and  equitable 
•doctrines,  the  estate  of  such  mortgagor  is  purely  equitable.  According  to 
the  doctrine  prevailing  generally  in  this  country,  the  estate  of  the  mortgagor 
is  legal,  and  the  case  would  fall  within  the  first  class.  Suits  by  which  a 
plaintiff's  equitable  title  is  turned  into  a  legal  estate,  by  the  remedy  of 
reformation,  cancellation,  and  the  like,  also  belong  to  this  second  class. 

3  In  this  class  are  .some  suits  for  accounting,  the  plaintiff's  claim  or  in- 
terest in  the  fund  or  other  subject-matter  being  equitable,  and  the  accounting 
and  pecuniary  recovery  being  a  legal  remedy;  also  many  suits  in  which  the 
plaintiff's  interest  is  equitable,  and  he  recovers  damages ;  also  suits,  by  an 
«quitable  assignee  of  a  fund  in  the  hands  of  a  third  person,  to  recover  the 
amount  thereof,  where  the  plaintiff's  ownership  is  wholly  equitable,  but  his 
relief  is  simply  a  recovery  of  a  certain  sum  of  money. 

4  The  suits  of  this  class  are  generally,  if  not  always,  actions  for  account- 
ing, in  which  the  rights  and  interests  in  the  subject-matter  are  purely  legal, 
and  the  action  is  brought  in  equity  merely  for  convenience.  The  account- 
ing and  recovery  of  money  are  of  course  a  legal  remedy.  The  ease  of  an  ordi- 
nary suit  to  settle  accounts  among  partners,  where  neither  of  them  is  in- 
solvent, and  no  equitable  liens  or  claims  to  marshal  the  assets  arise,  is  a 
familiar  example. 


§  99  EQUITY    JURISPRUDENCE.  104 

former  paragraph  (§  92),  it  will  enable  us  to  fix  the  limits 
of  these  primary  rights,  and  to  determine  the  classes  in 
which  they  are  all  found,  with  great  ease  and  precision. 
No  equity  primary  rights  belong  to  the  first  grand  division 
of  rights  relating  to  or  concerned  with  the  status  of  per- 
sons. All  the  rules  which  define  the  capacities  and  incapac- 
ities of  persons  to  acquire  rights  or  to  be  subject  to  duties 
are  strictly  legal.  The  only  apparent  exceptions  to  this 
proposition  are  the  statutory  special  proceedings  for  deter- 
mining whether  a  person  is  a  lunatic,  or  non  compos  mentis, 
or  a  confirmed  drunkard,  and  the  statutory  suits  for  divorce^ 
which  in  many  of  the  states  are  confided  to  the  Chancellor, 
or  to  a  judge  or  court  possessing  equity  powers.  But  in 
the  first  place,  these  proceedings  are  wholly  statutory,  and 
do  not  belong  to  the  equity  jurisdiction  as  such;  and  in  the 
second  jDlace,  they  are  wholly  remedial.^  All  the  primary 
rights,  therefore,  which  form  a  part  of  equity  are  referable 
to  the  second  division  of  Rights  relating  to  Things. 

§  99.  From  this  division,  also,  there  must  be  a  process 
of  elimination.  In  the  department  of  Real  rights.  Rights 
in  rem,  very  important  and  broad  limitations  are  to  be 
made.  No  equitable  primary  rights  are  contained  in  the 
second  of  the  three  genera  into  which  real  rights  are 
divided, —  or  those  which  a  person  possesses  over  his  own 
life,  body,  limbs,  or  good  name.  All  the  rights  of  this  kind 
are  purely  legal;  they  are  the  very  flower  and  fruit  of  the 
common  law, —  its  highest  excellence ;  and  equity  does  not 
intrude  upon  this  peculiar  field  of  the  law.  Nor  are  any 
equitable  primary  rights  contained  in  the  third  of  these 
genera, —  the  rights  held  by  certain  classes  of  persons  over 
certain  other  persons  occupying  special  domestic  relations 
towards  themselves.    The  rules  which  define  these  rights, 

1  These  proceedings  are  in  truth  remedies;  they  are  intended  to  ascer- 
taih  and  estublish  the  status  of  lunacy,  unsoundness  of  mind,  etc.,  or  to  dis- 
solve the  status  of  marriage;  but  tliey  do  not  determine  tlie  capacities  or  in- 
capacities of  lunatics,  etc., —  all  the  rules  which  dcterniinc  who  are  lunatics, 
insane,  married,  etc.,  and  their  capacities,  are  wholly  legal,  and  not  equitable. 


105  THE    CONSTITUENT   PARTS    OF    EQUITY.       §§  100,  101 

and  determine  the  powers  of  husbands  over  their  wives, 
parents  over  their  children,  guardians  over  their  wards, 
masters  over  their  servants,  belong  exclusively  to  the  do- 
main of  the  law ;  equity  does  not  interfere  with  these  purely 
personal  relations.  It  is  only  when  some  property  rights 
or  questions  concerning  property  arise  between  husband 
and  wife,  parent  and  child,  guardian  and  ward,  that  equity 
can  possibly  have  jurisdiction,  and  even  in  such  cases  the 
jurisdiction  does  not  extend  to  the  merely  personal 
relations." 

§  100.  We  are  now  prepared  by  this  process  of  elimina- 
tion to  define  with  exactness  the  classes  of  primary  rights 
and  duties  which  alone  come  within  the  domain  of  equity, 
and  thus  form  a  part  of  its  jurisprudence.  Among  the 
rights  in  rem,  real  rights,  it  is  only  those  of  the  first  genus, 
the  rights  of  property,  which  do  or  can  come  within  the 
scope  of  equity.  Among  the  rights  in  personam,  personal 
rights,  both  of  the  genera,  those  arising  from  contract  and 
those  arising  from  particular  relations  subsisting  between 
two  or  more  specific  persons,  may  come  within  the  domain 
of  equity.  The  rights  and  duties  of  the  parties  growing  out 
of  contracts,  and  especially  those  growing  out  of  certain 
determinate  relations  not  based  upon  contract,  but  directly 
concerned  with  property,  such  as  trustee  and  cestui  que 
trust  in  all  its  forms,  guardian  and  ward,  executor  or  ad- 
ministrator and  legatees,  distributees,  or  creditors,  and  the 
like,  constitute  a  large  and  important  part  of  the  primary 
rights  falling  under  the  equitable  jurisdiction.  Having 
thus  referred  the  primary  rights  which  equity  creates  to 
their  general  classes,  I  shall  now  describe  with  more  of 
detail  their  essential  nature  and  qualities. 

§  101.  It  must  be  premised  that  in  most  instances  the 
legal  primary  right,  and  the  corresponding  but  different 
equitable  primary  right,  arise  from  the  same  facts,  circum- 
stances, acts,  or  events  which  are  the  occasion  of  both. 

(a)  The  text  is  cited  to  this  effect  in  Lombard  v.  Morse,  155  Mass.  136, 
29  N.  E.  205,  14  L.  R.  A.  273. 


§  101  EQUITY    JURISPRUDENCE.  106 

But  in  some  instances,  facts,  circumstances,  or  events  which 
are  not  the  occasion  of  any  legal  right  at  all  give  rise  to  a 
primary  right  in  equity.^  With  respect  to  the  equitable 
primary  rights  taken  as  a  whole,  it  is  proper  to  say  that 
most  of  them  are  simply  different  from  or  additional  to 
those  which  exist  at  law;  they  do  not  contradict  any  rules 
upon  the  same  subject-matter  which  the  common  law  pro- 
vides; but  they  are  supplementary,  touching  upon  particu- 
lars in  relation  to  which  the  law  is  silent.  Between  this 
class  of  equitable  rights  and  the  corresponding  legal  rights 
there  is,  therefore,  no  conflict;  each  is  absolutely  true  at  all 
times  and  in  all  places ;  equity  courts  recognize  and  admin- 
ister the  one,  and  law  courts  the  other,  without  clashing  or 
discord.  With  respect  to  another  portion  of  these  jDrimary 
equitable  rules  and  rights,  it  must  be  said  that  they  are  not 
merely  additional  to,  but  they  are  in  actual  conflict  with,  the 
legal  rules  and  rights  concerning  the  same  subject-matter, 
or  arising  from  the  same  circumstances ;  between  the  kind 
of  equitable  rules  and  rights  and  the  corresponding  por- 
tions of  the  law,  there  is,  therefore,  an  antagonism;  the 
equity  courts  admit  and  uphold  a  particular  right  as  result- 
ing from  a  certain  state  of  facts,  which  the  law  courts  not 
only  refuse  to  recognize,  but  which  they  would  deny  and 
oppose.  This  contrariety  existed  to  a  much  larger  extent 
in  the  infancy  of  the  system  than  it  does  now;  it  has  gradu- 
ally become  less  as  the  law  itself  has  grown  more  liberal 
and  equitable.  That  there  should  be  any  such  conflict  be- 
tween two  departments  of  a  municipal  law  is  undoubtedly 
a  blemish  upon  the  national  jurisprudence;  but  this  condi- 
tion had  a  strictly  historical  origin,  and  the  very  progress 
towards  perfection  largely  consists  in  the  elimination  of 

1  A  familiar  cxaiiiplc  will  illustrate  both  of  these  cases.  From  the  same 
fact,  namely,  a  valid  written  contract  for  the  sale  of  land,  there  arise  the 
legal  riglit  of  the  vendee,  and  also  his  very  different  equitable  right.  From 
a  verbal  contract  for  tiic  sale  of  land  when  part  performed,  there  arises  no 
legal  right  whatever;  ijut  these  facts,  the  verbal  contract  together  with  the 
part  performance,  are  the  occasion  of  an  equitable  right  in  the  vendee  which 
'\i>  even  a   ri;,'ht   of  property,  an  equitalile  estate  in  the  land  itself. 


107  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  102 

these  instances  of  antagonism.  It  should  be  remembered, 
also,  that  equity  sometimes  furnishes  its  remedies  for  the 
violation  of  primary  rights  which  are  strictly  legal,  as,  for 
example,  in  many  cases  of  accounting. 

§  102.  A  few  examples  will  serve  to  illustrate  the  fore- 
going description  of  equitable  rules  and  rights,  and  will 
exhibit  its  correctness  in  the  clearest  manner.  Although 
the  first  of  the  cases  selected  no  longer  exists,  it  is  none 
the  less  appropriate  for  the  purpose  of  showing  the  exact 
nature  of  equitable  doctrines  in  their  relations  with  the 
law.  As  has  already  been  mentioned,  at  an  early  day  the 
law  declared  that  when  a  debtor  on  a  sealed  obligation 
had  paid  the  debt,  but  had  failed  to  take  an  acquittance 
under  seal,  or  a  surrender  of  the  instrument,  he  was  still 
liable,  and  the  creditor  could  recover  the  amount  a  second 
time  by  action.  Equity  interfered  and  gave  the  debtor  the 
remedy  of  a  perpetual  injunction  against  any  action  at  law, 
and  perhaps  the  delivery  up  or  cancellation  of  the  bond. 
It  is  not  the  form  of  the  remedy  to  which  I  now  call  atten- 
tion, but  the  primary  equitable  right  for  the  maintenance 
of  which  the  remedy  was  given.  Compare  the  rights  and 
duties  of  the  two  parties  at  law  and  in  equity.  The  law 
said  that  notwithstanding  the  payment  already  made,  the 
primary  right  of  the  creditor  arising  from  the  contract  to 
-demand  the  money,  and  the  primary  duty  of  the  debtor  to 
pay  it,  still  existed  in  full  force,  and  it  therefore  gave  the 
remedial  right  of  an  action  to  collect  the  debt.  Equity  said 
the  exact  opposite  of  this.  It  declared  that  the  primary 
right  of  the  creditor  and  the  primary  duty  of  the  debtor  had 
been  ended;  that  the  obligation  of  the  debtor  to  pay  had 
been  destroyed,  and  in  its  place  there  had  arisen  a  right  to 
have  the  evidence  of  that  obligation  canceled  or  to  have 
evidence  of  the  payment  created  in  a  formal  manner.  It 
therefore  gave  to  the  debtor  the  remedial  right  and  the 
remedy  of  an  injunction  and  of  a  cancellation.  It  is  an 
•entirely  mistaken  and  even  absurd  explanation  of  this  and 
other  analogous  cases,  to  assert  that  equity  simply  granted 


§  103  EQUITY    JURISPRUDENCE.  .  IDS' 

a  remedy  which  the  law  did  not  give.  Remedies  are  not 
conferred  by  equity  courts,  any  more  than  by  law  courts, 
unless  a  primary  right  and  duty  exist,  which  have  been 
violated,  so  that  a  remedial  right  arises  from  such  viola- 
tion. Equity  did  not,  in  this  case,  interpose  its  remedy 
in  favor  of  the  debtor  for  the  violation  of  any  legal  right ; 
for  the  law  most  peremptorily  affirmed  that  the  primary 
right  of  the  creditor,  which  it  gave  him  on  the  occasion 
of  the  sealed  contract  being  executed,  was  in  full  force, 
and  that  the  primary  duty  which  it  imposed  upon  the  debtor 
remained  unaffected.  Equity  as  emphatically  denied  all 
this,  and  asserted  that  no  such  primary  right  and  duty 
were  left  existing,  but  that  the  position  of  the  two  parties 
had  been  exactly  reversed.  There  was  a  plain  and  direct 
conflict  in  the  primary  rights  and  duties  flowing  from  the 
same  facts  and  events.  It  is  true,  this  particular  instance 
of  antagonism  no  longer  exists,  since  the  absurd  rule  of 
the  law  has  long  been  changed,  so  as  to  harmonize  with 
the  equitable  doctrine;  but  I  have  thus  dwelt  upon  the  case 
at  large,  because  it  is  a  most  admirable  illustration  of  the 
class  of  equitable  primary  rights  which  are  in  conflict  with, 
and  not  merely  supplementary  to,  the  legal  primary  rights 
resulting  from  the  same  circumstances. 

§  103.  I  give  another  example  of  the  same  class.  Under 
the  prohibition  of  the  Statute  of  Frauds,  a  contract  for 
the  sale  of  land,  when  not  in  writing,  cannot  be  enforced  in 
law,  even  though  part  performed.  It  makes  no  difference 
whether  the  statute  says,  as  in  England  and  in  some  of  the 
states,  that  no  action  can  be  maintained  on  such  an  agree- 
ment, or  says,  as  in  the  other  states,  that  the  agreement 
is  void;  the  result  is  practically  the  same  in  either  form  of 
the  statute :  the  verbal  contract  is  no  contract  at  law,  but  is 
simply  a  nullity.^    Equity  speaks  a  very  different  language. 

1  F  iini,  of  course,  aware  of  the  tlieory  so  often  stated  by  courts,  that  the 
fitatute  only  afFects  the  evich'nce,  and  not  the  right.  But  a  rifjfht  which  can- 
not under  any  possible  eirc\imstanees  be  enforced  is  certainly  no  right. 
This    purely   technical    flocfrine    in    relation    to   the   statute    was    invented   ini 


109  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  103 

It  says  that  such  a  verbal  contract,  if  part  performed  in  a 
proper  manner,  shall  be  enforced.  The  processes  of  reason- 
ing through  which  courts  of  equity  have  reached  this  conclu- 
sion, and  the  theorj^  which  they  have  adopted  to  reconcile 
their  judicial  action  with  the  prohibitions  of  the  statute, 
are  wholly  immaterial ;  the  result  is  patent  upon  any  theory, 
that  equity  from  certain  acts  and  events  creates  primary 
rights  and  duties  in  the  parties  diametrically  opposed  in 
their  nature  to  tho.se  which  the  law  creates  on  the  occasion 
of  the  same  facts.  The  law  declares  that  from  the  verbal 
contract,  although  part  performed,  no  primary  right  arises 
in  favor  of  either  party,  and  no  corresponding  duty  de- 
volves upon  either ;  and  if  either  refuses  to  do  what  he  has 
thus  verbally  promised,  the  law  admits  no  remedial  right 
in  the  other,  and  gives  him  no  remedy.  Very  different 
is  the  result  in  equity.  Whatever  be  the  grounds  of  its 
action,  the  plain  fact  is,  that  when  such  a  verbal  agreement 
has  been  properly  part  performed,  say  by  the  purchaser, 
equity  recognizes  in  him  exactly  the  same  primary  right 
which  would  have  existed  if  the  contract  had  been  written, 
—  the  right  to  have  the  very  thing  done  which  was  agreed 
to  be  done,—  and  devolves  upon  the  vendor  exactly  the 
same  duty  which  would  then  have  rested  upon  him ;  and  if 
this  primary  right  or  duty  is  violated  by  the  vendor's  re- 
fusal to  perform,  equity  gives  to  the  vendee  its  remedy  of 
a  specific  enforcement.  The  same  is  true  when  the  part  per- 
formance has  been  by  the  vendor.  In  this  instance,  also,  the 
primary  rights  and  duties  created  by  equity  are  not  only 
additional  to,  but  in  direct  conflict  with,  those  created  by  the 
law  between  the  same  parties  under  the  same  circumstances. 
In  both  the  foregoing  examples  the  equitable  rights  and 

order  to  admit  a  legal  basis  for  certain  collateral  results  flowing  from  a 
verbal  contract;  it  has  never  been  carried  to  the  extent  of  maintaining  that 
any  legal  right  arose  from  such  an  agreement.  It  is  strictly  correct,  there- 
fore, to  say  that  with  either  form  of  the  statute  no  legal  primary  right  re- 
sults from  a  verbal  contract  within  the  statute ;  for  if  there  were  any  sucli 
right,  its  violation  would  give  rise  to  a  legal  remedy,  which  is  impossible. 


§  104  EQUITY    JURISPRUDENCE.  110 

duties  belong  to  the  class  of  "  Personal,"—  Rights  in  per- 
sonam, being  against  a  specific  or  determined  person, 

§  104.  Another  remarkable  example  of  equitable  primary 
rights,  in  direct  conflict  with  those  created  by  the  law  under 
the  same  facts,  is  shown  in  those  contracts  of  married 
women  which  are  treated  as  valid  and  enforced  by  equity. 
At  the  common  law  every  agreement  of  a  married  woman 
was  simply  a  nullity,  not  merely  voidable,  but  absolutely 
void.  Equity  did  not  in  a  direct  manner  abolish  this  legal 
dogma.  It  did,  however,  in  the  cases  reached  by  its  doctrine, 
create  a  primary  right  and  duty  from  the  contract,  which, 
being  violated,  it  enforced  in  its  own  manner  and  by  its 
own  peculiar  remedy;  it  even  enforced  an  agreement  be- 
tween the  husband  and  wife,  if  beneficial  to  her  rights  of 
property.  So  far  as  equity  went,  there  was  thus  a  direct 
antagonism  between  its  rules  and  those  of  the  law.  The 
law  said  most  peremptorily  that  no  right  or  duty  arose 
from  the  transaction.  Equity  said  that  the  contract  was 
the  occasion  of  a  full  right  and  duty  of  performance,  and 
although  in  deference  to  the  common  law  it  did  not  enforce 
the  duty  against  the  wife  personally,  it  enforced  it  against 
her  separate  estate,  upon  which  it  was  a  charge.  And  in 
agreements  made  by  the  married  woman  for  the  benefit 
of  her  separate  estate,  equity  gave  her  its  remedy  of  spe- 
cific performance.^ 

1  I  add  one  more  striking  illustration.  When  there  are  two  or  more  joint 
promisors  and  debtors, —  A,  B,  and  C, —  and  one  of  them,  C,  dies,  then  at 
the  common  law  all  his  liability  ceases  absolutely.  The  creditor  can  maintain 
no  action  at  law.  under  any  circumstances,  against  his  personal  representa- 
tives to  recover  the  debt  or  any  portion  thereof;  the  creditor's  sole  primary 
right  growing  out  of  the  original  contract,  and  his  sole  remedy  by  action,, 
are  against  the  survivors,  A  and  B.  Equity,  however,  has  altered  these 
relations.  Kf|uity  regards  the  original  demand  of  the  creditor  as  still  sub- 
sisting against  the  estate  of  the  deceased  joint  debtor,  C,  and  such  estate 
as  still  remaining  bound  by  the  obligation;  and  therefore  enables  the  creditor 
to  maintain  a  suit  agninst  <lie  represontat Ives  of  C\  for  the  purpose  of  recover- 
ing tlie  amount  due.  Here  1  lie  antagonisjii  is  ])hMii  niul  direct;  and  it  makes 
no  difTcrence  whether  we  adopt  the  English  rule  tlmt  tlic  creditor  may  sue 
the  repreHf-ntatives  of  tbe  decensed  at  his  elec-tinn,  or  (lie  rule  prevailing  in 
Honw  of  our  states,  that  tlic  <'r''(]itf)r  f.-in   only  ."uc  C's   rcprosontatives,  when 


Ill  THE  CONSTITUENT  PARTS  OF  EQUITY.         §  105 

§  105.  I  pass  to  examples  of  other  kinds.  Wherever  the 
books  or  the  courts  speak  of  "  equitable  estates,"  either 
in  land  or  in  chattels,  as  held  by  a  person,  there  are  in 
reality  equitable  real  rights,  rights  in  rem,  rights  of  prop- 
erty, in  the  land  or  chattels,  different  from  or  additional 
to  the  rights  arising  from  the  same  facts  which  the  law  con- 
fers upon  the  same  party.  The  kinds  and  degrees  of  these 
equitable  rights  of  property  are  numerous,  ranging  from 
the  most  complete,  beneficial  ownership,  simply  wanting  the 
legal  title,  through  various  grades  to  mere  liens ;  the  special 
rules  concerning  them  constitute  an  important  part  of 
equity  jurisprudence.  I  shall  mention  a  few  examples  for 
purposes  of  illustration.  The  most  familiar  case  in  this 
country  is  that  of  the  ordinary  executory  contract  for  the 
sale  of  land.  The  law  recognizes  from  this  transaction 
nothing  but  *'  personal  "  rights  and  duties.  As  long  as 
the  agreement  remains  executory,  the  vendee  acquires  no 
right  of  property  in  the  land,  nor  the  vendor  in  the  pur- 
chase-money; each  party  has  the  right  against  the  other 
that  the  contract  shall  be  fulfilled  according  to  its  terms; 
but  for  the  violation  of  this  primary  right  the  only  legal 
remedy  is  a  pecuniary  compensation.  The  view  which 
equity  takes  of  the  juridical  relations  resulting  from  the 
transaction  is  widely  different.  Applying  one  of  its  fruit- 
ful principles,  that  what  ought  to  be  done  is  regarded  as 
done,  equity  says  that  from  the  contract,  even  while  yet 
executory,  the  vendee  acquires  a  "  real  "  right,  a  right  of 
property  in  the  land,  which  though  lacking  a  legal  title,  and 
therefore  equitable  only,  is  none  the  less  the  real,  beneficial 

he  is  unable  to  enforce  his  demand  against  the  survivors.  In  either  form  of 
the  rule,  equity  regards  the  primary  right  of  the  creditor  growing  out  of  the 
original  contract,  and  the  obligation  of  the  deceased  debtor,  as  still  existing, 
and  therefore  gives  its  remedy  by  suit;  while  the  law  regards  such  right  and 
obligation  as  wholly  gone,  and  therefore  refuses  any  remedy.  It  is  true  that 
the  legislature,  in  some  states,  has  abrogated  this  legal  doctrine,  and  has 
made  the  estate  of  the  deceased  joint  debtor  liable  at  law.  Similar  remarks 
might  be  made  concerning  the  case  of  two  or  more  joint  creditors,  where  one 
of  them  dies,  and  the  contrasting  doctrines  of  law  and  of  equity  applicable 
thereto. 


§  105  EQUITY    JURISPRUDENCE.  112 

ownership,  subject,  however,  to  a  lien  of  the  vendor  as  se- 
curity for  the  purchase-price  as  long  as  that  remains  un- 
paid. This  property  in  the  land,  upon  the  death  of  the 
vendee,  descends  to  his  heirs,  or  passes  to  his  devisees,  and 
is  liable  to  the  dower  of  his  widow.*"  The  vendor  still  holds 
the  legal  title,  but  only  as  a  trustee,  and  he  in  turn  acquires 
an  equitable  ownership  of  the  purchase-money;  his  prop- 
erty, as  viewed  by  equity,  is  no  longer  real  estate,  in  the 
land,  but  personal  estate,  in  the  price,  and  if  he  dies  be- 
fore payment,  it  goes  to  his  administrators,  and  not  to  his 
heirs.  In  short,  equity  regards  the  two  contracting  parties 
as  having  changed  positions,  and  the  original  estate  of  each 
as  having  been  ' '  converted, ' '  that  of  the  vendee  from  per- 
sonal into  real  property,  and  that  of  the  vendor  from  real 
into  personal  property.''  Although  these  primary  rights 
which  equity  thus  creates  are  very  different  from  those 
which  the  law  recognizes,  there  is  still  no  conflict  or  antag- 
onism between  the  two."^  While  equity  gives  to  the  pur- 
chaser a  property  in  the  land,  and  furnishes  him  with  its 
specific  remedies  to  maintain  and  enforce  that  ownership, 
at  the  same  time  it  does  not  deny  nor  interfere  with  his 
legal  primary  right  against  the  vendor  personally  arising 
from  the  contract.  The  vendee  in  fact  has  an  election.  Ee- 
lying  upon  the  mere  personal  primary  right  of  contract,  he 
or  his  executors  or  administrators  may  sue  in  a  court  of 
law  to  recover  damages  for  a  violation  of  the  agreement; 
or  relying  upon  the  real  right,  his  ownership  of  the  land, 
he  or  his  heirs  may  sue  in  a  court  of  equity,  and  procure 
his  ownership  to  be  fully  established,  and  the  legal  muni- 
ments of  liis  title  perfected. 

(a)  Tlie    U'xt    is    quoted    in    Parks  SHG,  93  N.  W.  862;  cited,  Schenck  v. 
V.    Smoot'8   Admrs.,    105    Ky.    (i3,    48  Wicks,  23  Utah,  570,  (if)  Pac.   732. 
S.  W.  140;   Walker  v.  Goldsmith,   14  (c)    See,    further,   as   to   the   equi- 
Oreg.  125,  12  Pac.  537.  table  estates  arising  from  the  execu- 

(b)  Tlie  text  is  quoted  in  Parka  tory  contract  for  the  sale  of  land, 
V.  Smoot'fl  Admrs.,  105  Ky.  03,  48  post,  §§  307,  308,  372,  1160,  1161, 
K.  W.   146;  Clapp  v.  Tower,  11   N.  D.        1260,   1261,   1203,   1400. 


113  THE    CONSTITUENT    PARTS    OF    EQUITY.    §§  106,    107 

§  106.  In  all  cases  of  implied  trusts  there  is  the  same 
■difference  between  the  legal  primary  right,  purely  *'  per- 
sonal "  in  its  nature,  and  the  equitable  estate,  or  right  of 
property.  One  instance  will  illustrate  the  entire  class. 
A  receives  from  B  a  sum  of  money  under  an  agreement  to 
purchase  therewith  a  parcel  of  land  for  B,  and  to  take  the 
conveyance  in  the  latter 's  name;  he  purchases  the  land,  but 
takes  the  deed  to  himself  in  violation  of  his  duty,  and  with 
the  design  of  obtaining  all  the  benefit  and  of  retaining  the 
ownership.  The  law  under  these  and  all  similar  circum- 
stances sees  only  a  contract,  express  or  implied,  between 
the  parties,  with  the  purely  ''personal"  rights  which 
spring  from  contract.  B  has  no  property  in  the  land,  and 
his  only  legal  remedy  is  compensation  by  damages.  In 
equity,  however,  B  acquires  a  "  real  "  right,  an  estate  in 
the  land,  which  is  regarded  as  the  true  and  beneficial 
ownership,  with  all  tlie  incidents  of  real  property;  and  he 
can  establish  that  ownership  by  compelling  A  to  convey 
the  legal  title  and  deliver  the  possession. 

§  107.  The  same  and  sometimes  even  a  greater  differ- 
ence between  the  legal  and  equitable  rights  exists  in  all  in- 
stances, so  common  in  England,  but  no  longer  permitted 
in  many  American  states,  but  seldom  known,  even  if  theo- 
retically possible,  in  the  others,  of  express  passive  trusts 
in  lands.  At  law  the  cestui  que  trust  never  acquires  any 
property  in  the  land  so  long  as  the  trust  is  subsisting,  and 
in  many  cases  he  obtains  no  right  whatever,  either  of  prop- 
erty or  of  contract.  In  equity,  however,  the  cestui  que  trust 
is  the  real  owner ;  his  primary  right  is  one  of  property  in  the 
land,  either  in  fee,  for  life,  or  for  years.  Another  exceed- 
ingly instructive  example  is  the  estate  of  the  mortgagor 
created  by  equity,  while  the  law,  unless  altered  by  statute, 
regards  all  the  property  as  vested  in  the  mortgagee.  I  need 
not  add  any  more  examples.  I  have  already  given  a  suf- 
ficient number  and  variety  to  illustrate  and  show  the  truth 
of  my  main  proposition,—  that  equity  is  not  wholly  a  system 

of  remedies ;  but  that  it  consists  in  part  of  primary  rights 
Vol.  I  — 8 


§   108  EQUITY    JURISPRUDENCE.  114 

and  duties,  and  of  the  rules  concerning  them,  differing 
from,  sometimes  conflicting  with^  but  more  often  additional 
to,  the  primary  rights,  duties,  and  rules  relating  to  the 
same  matters  established  by  the  law. 

§  108.  II.  Equitable  Remedies.—  Equity  consists,  to  a 
very  great  extent,  of  Remedies  and  Remedial  Rights  dif- 
ferent from  any  which  the  law  administers  by  means  of  its 
ordinary  actions  ;^  although  it  does,  under  certain  circum- 
stances, grant  remedies  which  are  legal  in  their  nature,  and 
are  capable  of  being  conferred  by  a  judgment  at  law, 
namely,  a  mere  recovery  of  money,  or  of  the  possession  of 
specific  land  or  chattels.  Many  of  the  ordinary  equitable 
remedies  are  derived  directly  from  the  nature  of  the  pri- 
mary right  which  they  are  intended  to  protect.     For  ex- 

1  I  intentionally  pass  by  the  specific  legal  remedies  which  the  law  gives  by 
means  of  Mandamus^  Quo  Warranto,  and  certain  other  special  proceedings, 
and  which  have  some  general  resemblance  to  the  reliefs  granted  by  equity. 

The  principle  of  equitable  primary  rights,  as  distinguished  from  legal  pri- 
mary rights,  and  of  equitable  remedies,  was  very  clearly  recognized  and  illus- 
trated by  the  doctrine  concerning  the  liability  of  a  married  woman's  separate 
estate  to  be  appropriated  in  equity  in  satisfaction  of  her  contracts,  by  the 
English  Court  of  Appeal  in  the  very  recent  case  of  Ex  parte  Jones,  L.  R. 
12  Ch.  Div.  484,  488-490.  Speaking  of  the  nature  and  grounds  of  this  equi- 
table liability,  James,  L.  J.,  said:  "If  she  is  not  liable  to  be  sued  as  a 
feme  sole  in  what  used  formerly  to  be  called  a  common-law  action,  she  is  not 
liable  to  be  sued  for  a  debt  at  all.  In  equity  the  liability  was  to  have  her 
separate  estate  taken  from  her  for  the  benefit  of  the  person  with  whom  she 
had  contracted  on  the  faith  of  it.  That  was  a  special  equitable  rcuicdij,  aris- 
ing out  of  a  special  equitable  right.  But  the  married  woman  who  contracts 
in  that  wa^'  is  not  a  debtor  in  any  sense  of  the  word"'  (that  is,  she  is  not 
liable  under  a  contract  binding  at  law,  which  creates  the  legal  liability  of 
indebtedness  and  tlie  corresponding  legal  right  of  a  creditor).  Brett,  L.  J., 
said :  The  equitable  procedure  "  did  not  enable  any  one  to  sue  a  married 
woman  as  upon  and  for  a  debt  in  a  court  of  equity.  It  was  a  peculiar  remedy 
against  the  .separate  property  of  the  married  woman  so  long  as  it  existed,  but 
it  was  not  a  remedy  against  her  as  and  for  a  debt." 

Cotton,  L.  J.,  said:  "A  debtor  must  be  a  person  who  can  be  sued  personally 
for  a  debt,  and  who  is  liable  to  all  the  consequences  of  a  personal  judgmejit 
against  him.  I5ut  that  is  not  at  all  ihc  position  of  a  married  woman,  even 
tliougli  she  has  separate  estate.  .     .     It   is  not  the  woman,  as  a  woman, 

who  bcforncH  a  dcl)tor,  but  her  engagement  has  made  tliat  particular  part  of 
her  property  whidi  is  settled  to  her  separate  use  a  debtor  and  liable  to 
Batisfy  the  engagement," 


115  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  109 

ample,  in  the  case  of  a  contract  for  the  purchase  of  land,  or 
of  an  implied  trust  in  land,  or  of  any  other  transaction  from 
which  the  equitable  primary  right  consists  in  a  right  of 
property,  this  equitable  estate,  although  the  real,  beneficial 
ownership  is  subject  to  some  great  inconveniences  which 
lessen  its  value,  the  holder  of  the  legal  title  in  trust  for  the 
equitable  owner  cannot  defeat  the  latter 's  right  as  long  as 
he  retains  such  title  in  his  own  hands^  but  he  can  convey  it 
to  another  bona  fide  purchaser,  and  thus  cut  off  the  existing 
equitable  estate.  To  prevent  this,  and  to  secure  his  full 
enjoyment  of  the  property,  a  peculiar  remedy  is  given  to  the 
equitable  owner,  by  which  he  establishes  his  right,  perfects 
his  interest,  compels  a  conveyance  of  the  legal  title,  and  a 
transfer  of  the  possession,  if  necessary,  and  thus  acquires  a 
full  and  indefeasible  estate,  legal  as  well  as  equitable,  in 
the  land.*  A  large  class  of  remedies  are  thus  based  upon 
and  exactly  fitted  to  the  nature  of  the  primary  right;  these 
remedies  are  distinctively  equitable ;  and  their  intimate  cor- 
respondence with  the  primary  rights  which  they  enforce 
has,  more  than  anything  else  perhaps,  led  to  the  mistake, 
alluded  to  in  a  former  paragraph,  of  confounding  all  equi- 
table primary  rights  with  remedial  ones,  and  of  supposing 
that  equity  is  wholly  a  system  of  remedies. 

§  109.  The  distinguishing  characteristics  of  legal  rem- 
edies are  their  uniformity,  their  unchangeableness  or  fixed- 
ness, their  lack  of  adaptation  to  circumstances,  and  the 
technical  rules  which  govern  their  use.  The  legal  remedies 
by  action  are,  in  fact,  only  two :  recovery  of  possession  of 
specific  things,  land  or  chattels,  and  the  recovery  of  a  sum 
of  money.  When  a  person  is  owner  of  land  or  of  chattels 
in  such  a  way  that  he  is  entitled  to  immediate  possession, 
he  may  recover  that  possession;  but  since  the  action  of 
'*  Ejectment  "  has  taken  the  place  of  the  old  real  actions, 
a  recovery  of  the  land  by  its  means  does  not  necessarily 

(a)  This  paragraph  of  the  text  is  330,  13  U.  S.  App.  411  (suit  for 
cited  in  Provisional  Municipality  of  specific  performance  against  a  mu- 
Pensacola   v.    Lehman,    57    Fed.    324,       nicipality) . 


§  110  EQUITY   JURISPRUDENCE.  116 

'determine  or  adjudge  the  title,  and  in  a  recovery  of  cliat- 
iels  by  the  action  of  replevin,  the  title  is  only  determined 
in  an  incidental  manner.^  For  all  other  violations  of  all 
possible  primary  rights,  the  law  gives,  as  the  only  remedy, 
the  recovery  of  money,  which  may  be  either  an  ascertained 
sum  owed  as  a  debt,  or  a  sum  by  way  of  compensation, 
termed  damages.  Equitable  remedies,  on  the  other  hand, 
are  distinguished  by  their  flexibility,  their  unlimited  variety, 
their  adaptability  to  circumstances,  and  the  natural  rules 
which  govern  their  use.  There  is  in  fact  no  limit  to  their 
variety  and  application ;  the  court  of  equity  has  the  power 
of  devising  its  remedy  and  shaping  it  so  as  to  fit  the  chang- 
ing circumstances  of  every  case  and  the  complex  relations 
of  all  the  parties."* 

§  110.  Notwithstanding  this  unlimited  power  of  expan- 
sion and  invention,  there  are  certain  species  of  equitable 
remedies  which  have  become  well  established  and  familiarly 
known,  and  which  are  commonly  designated  by  the  term 
*^  ec[uitable  remedies  "  whenever  it  is  used.  They  may  be 
separated  into  three  classes:  1.  Those  which  are  entirely 
different  from,  any  kind  of  reliefs  known  and  granted  by 
the  law.  Of  this  class  are  the  preventive  remedy  of  Injunc- 
tion, the  restorative  remedy  of  Mandatory  Injunction,  the 

1  It  should  be  remembered  that  I  am  speaking  of  the  common-hxw  forms 
of  action,  and  not  of  the  system  introduced  by  the  reformed  procedure.  Since 
in  the  action  of  ejectment  the  plaintiff  was  a  fictitious  person,  and  not  the 
real  party  in  interest,  a  judgment  was  no  bar  to  any  nimiber  of  succeeding 
actions;  it  required  a  suit  in  equity  and  a  perpetual  injunction  to  restrain 
the  continuous  bringing  of  such  actions  in  a  given  case,  and  to  declare  the 
title.  In  the  American  states,  statutes  have  put  a  limit  upon  the  number  of 
separate  actions  wliich  may  be  brought.  Under  the  reformed  procedure,  the 
action  to  recover  land  really  has  nothing  in  common  with  "  ejectment  " ;  it 
rather  rfsenildcs  the  old  "real  action  "  in  determining  the  title  as  well  as  the 
possession,  and  it  is  so  regarded  in  some  of  the  states.  But  by  a  strange  in- 
consistency, the  statutes  of  other  states  treat  it  as  only  a  simplified  ejectment, 
and  the  judgment  recovered  by  it  as  not  finally  adjudicating  upon  the  title. 
In  a  few  of  the  states,  the  old  common-law  "  real  action  "  is  still  used  instead 
of  f'jectmfnt. 

(a)  The  text  is  quoted  in  Sourwine  v.  .Supreme  Lodge,  12  Ind.  App.  447 
.54  Am.  St.  Rep.  ."5.32,  40  N.  E.  C46. 


117  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  113 

remedies  of  Reformation,  Specific  Performance,  and  many 
others.*  2.  Those  which  the  legal  procedure  recognizes,  but 
does  not  directly  confer,  and  the  beneficial  results  of  which 
it  obtains  in  an  indirect  manner.  A  familiar  example  is  the 
relief  of  Rescission  or  Cancellation.  A  court  of  equity  en- 
tertains a  suit  for  the  express  purpose  of  procuring  a  con- 
tract or  conveyance  to  be  canceled,  and  renders  a  decree 
conferring  in  terms  that  exact  relief.  A  court  of  law  en- 
tertains an  action  for  the  recovery  of  the  possession  of 
chattels,  or,  under  some  circumstances,  for  the  recovery  of 
land,  or  for  the  recovery  of  damages,  and  although  nothing 
is  said  concerning  it,  either  in  the  pleadings  or  in  the  judg- 
ment, a  contract  or  a  conveyance,  as  the  case  may  be,  is 
virtually  rescinded ;  the  recovery  is  based  upon  the  fact  of 
such  rescission,  and  could  not  have  been  granted  unless  the 
rescission  had  taken  place.  Here  the  remedy  of  cancella- 
tion is  not  expressly  asked  for,  nor  granted  by  the  court  of 
law,  but  all  its  effects  are  indirectly  obtained  in  the  legal 
action.^  ^  It  is  true,  the  equitable  remedy  is  much  broader 
in  its  scope,  and  more  complete  in  its  relief;  for  its  effects 
are  not  confined  to  the  particular  action,  but  by  removing 
the  obnoxious  instrument  they  extend  to  all  future  claims 
and  actions  based  upon  it.  3.  Those  which  are  substantially 
the  same  both  in  equity  and  at  the  law.  Familiar  examples 
of  this  class  are  the  partition  of  land  among  co-owners,  and 
the  admeasurement  of  dower,  in  which  the  final  relief 
granted  by  equity  is  the  same  as  that  obtained  through  the 

1  It  would  perhaps  be  more  correct  to  say  that  the  legal  judgment  pro- 
ceeded upon  the  assumption  that  one  of  the  parties  had  himself  rescinded  the 
contract  or  conveyance  prior  to  the  suit,  and  that  he  was  justified  in  so  doing; 
but  this  explanation  does  not  alter  the  result  or  modify  the  statement  of  the 
text.  In  either  theory,  the  legal  procedure  recognizes  the  rescission  as  a  fact, 
and  its  benefits  are  secured  indirectly  by  the  judgment;  as  in  actions  by  de^ 
frauded  vendors  to  recover  the  goods  or  their  value. 

(a)  This  paragraph  of  the  text  is  (suit  for  specific  performance  against 
cited  in  Provisional   Municipality  of       a  municipality). 

Pensacola   v.    Lehman,    57    Fed.    324,  (b)  The  text  is  quoted  in  State  v. 

330,  13  U.  S.  App.  411,  6  C.  C.  A.  349       Snyder,   66   Tex.   687,    18   S.  W.    106, 

108. 


§  111  EQUITY    JURISPRUDENCE.  118 

now  almost  obsolete  legal  aetions  f  the  process  of  account- 
ing and  determining  the  balance  in  favor  of  one  or  the  other 
party  i*^  and  even,  under  special  circumstances,  the  award  of 
pecuniary  damages  expressly.  This  mode  of  classifying 
equitable  remedies  was  both  common  and  convenient  while 
the  jurisdictions  of  law  and  equity  were  wholly  distinct  and 
confided  to  different  tribunals,  but  has  lost  much  of  its 
efficacy  since  they  have  been  conferred  upon  the  same  court, 
and  under  the  reformed  procedure,  which  combines  legal 
and  equitable  remedies  in  one  action,  it  has  become  posi- 
tively misleading. 

§  111.  Abandoning,  therefore,  this  method  of  arranging 
and  describing  remedies,  as  no  longer  adapted  to  the  ad- 
ministration of  equity  jurisprudence  at  the  present  day, 
I  shall  classify  them  according  to  their  essential  natures. 
Equity  has  followed  the  true  principle  of  contriving  its 
remedies  so  that  they  shall  correspond  both  to  the  primary 
right  of  the  injured  party,  and  to  the  wrong  by  which  that 
right  has  been  violated.  It  has,  therefore,  never  placed 
any  limits  to  the  remedies  which  it  can  grant,  either  with 
respect  to  their  substance,  their  form,  or  their  extent;  but 
has  alwaj^s  preserved  the  elements  of  flexibility  and  ex- 
pansiveness,  so  that  new  ones  may  be  invented,  or  old  ones 
modified,  in  order  to  meet  the  requirements  of  every  case, 
and  to  satisfy  the  needs  of  a  progressive  social  condition, 
in  which  new  primary  rights  and  duties  are  constantly  aris- 
ing, and  new  kinds  of  wrongs  are  constantly  committed." 

2  The  ancient  legal  actions  of  partition  and  admeasurement  of  dower, 
though  long  discarded  in  England,  are  still  retained  in  a  modified  form  in 
Massachusetts,  Pennsylvania,  and  perhaps  in  two  or  three  additional  states. 
In  other  states,  where  the  reformed  procedure  has  not  been  introduced,  "eject- 
ment "  is  sometimes  used  for  the  same  pnrjiose. 

(c)    The  text  is  cited  in  Russell  v.  Co.  v.  City  of  DaAVSon,  130  Fed.  152, 

McCall,    141    N.   Y.   437,   38   Am.    St.  176;    Ilarrigan    v.   Gilchrist    (Wis.), 

Hep.  807,  30  N.  E.  498.  00  N.  W.  900;   Sourwine  v.  Supreme 

(a)  Tlie   text    is    quot<,.i    in    Union  f^odge,    12    Ind.    App.    447,    54    Am. 

Pacific  R.  Co.  V.  Chicago.   H.   I.  &   W  Rep.  532,  40  N.  E.  646;  and  cited  in 

R.  Co.,    163   U.   S.   564,    16   Sup.   Ct.  Kessler  &  Co.  v.  Ensley  Co.,  129  Fed. 

1173;  Columbia  Ave.  Sav.  Fund,  etc.,  397. 


119  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  112 

§  112.  Although  the  number  and  variety  of  particular 
remedies  are  great,  those  in  common  use  may  be  grouped 
into  certain  general  classes  according  to  their  essential 
elements,  which,  as  said  above,  are  based  upon  the  primary 
right  violated  and  the  wrongful  act  or  default  in  combina- 
tion. These  classes  are  the  following:  1.  Declarative  Reme- 
dies, or  those  whose  main  and  direct  object  is  to  declare, 
confirm,  and  establish  the  right,  title,  property,  or  estate 
of  the  plaintiff,  whether  it  be  equitable  or  legal.  The 
remedies  of  this  class  are  often  granted  in  combination  with 
others,  and  in  fact  they  sometimes  need  other  kinds  of  re- 
lief as  a  preliminary  ste])  to  make  them  effective ;  but  on  the 
other  hand,  they  are  often  granted  by  themselves,  uncon- 
nected with  anything  else.  2,  Restorative  Remedies,  or 
those  by  which  the  plaintiff  is  restored  to  the  full  enjoyment 
of  the  right,  property^  or  estate  to  which  he  is  entitled,  but 
which  use  and  enjoyment  have  been  hindered,  interfered 
with,  prevented,  or  withheld  by  the  wrong-doer.  The  legal 
remedies  of  this  kind  are  simple  recoveries  of  possession 
either  of  land  or  of  chattels.  The  equitable  remedies  of 
restoration  are  much  more  various  in  their  form  and  com- 
plete in  their  eifect.  Like  those  of  the  first  class,  they  are 
often  granted  in  combination  with  other  kinds  of  relief,  and 
frequently  need  some  other  special  eciuitable  remedy,  such 
as  cancellation  or  reformation  of  instruments,  to  remove  a 
legal  obstacle  to  the  full  enjoyment  of  the  plaintiff's  right, 
and  to  render  them  efficient  in  restoring  him  to  that  enjoy- 
ment, o.  Preventive  Remedies,  or  those  by  which  a  viola- 
tion of  a  primary  right  is  prevented  before  the  threatened 
injury  is  done,  or  by  which  the  further  violation  is  pre- 
vented after  the  injury  has  been  partially  effected,  so  that 
some  other  relief  for  the  wrong  actually  accomplished  can 
be  granted.  The  ordinary  injunction,  whether  final  or  pre- 
liminary, is  the  familiar  example  of  this  class;  the 
mandatory  injunction  is  essentially  a  restorative  remedy. 
4.  Remedies  of  Specific  Performance,  or  those  by  which  the 
party  violating  his  primary  duty  is  compelled  to  do  the 


§  112  EQUITY    JURISPRUDENCE.  120' 

very  acts  which  his  duty  and  the  plaintiff's  primary  right 
require  from  him.  The  remedies  of  this  class  are  very 
numerous  in  their  special  forms  and  in  respect  to  the 
juridical  relations  in  which  they  are  applicable.  ' '  Specific 
performance  ' '  is  often  spoken  of  as  though  it  was  confined 
to  the  case  of  executory  contracts;  but  in  reality  it  is  con- 
stantly employed  in  the  enforcement  of  rights  and  duties 
arising  from  relations  between  specific  persons  which  da 
not  result  from  contracts,  as,  for  example,  between  cestids 
que  trustent  and  their  trustees,  wards  and  their  guardians, 
legatees,  distributees,  or  creditors  and  executors  or  admin- 
istrators, and  the  like."  In  these  latter  cases,  however,  as 
well  as  in  that  of  the  specific  performance  of  an  executory 
contract  at  the  suit  of  a  vendor,  the  form  and  nature  of  the 
final  relief  is  often  the  same  as  that  of  accounting,  pecuniary 
compensation,  or  restoration.  5.  Remedies  of  Reforma- 
tion, Correction,  or  Re-execution,  by  means  of  which  a 
written  instrument,  contract,  deed,  or  other  muniment  of 
title,  which  for  some  reason  does  not  conform  to  the  actual 
rights  and  duties  of  the  parties  thereto,  is  reformed,  cor- 
rected, or  re-executed.  Sometimes  this  remedy  is  asked  for 
and  obtained  simply  on  its  own  account,  merely  for  purpose 
of  correcting  the  instrument;  but  it  is  often,  and  perhaps 
generally,  obtained  as  a  necessary  preliminary  step  to  the 
granting  of  a  further  and  more  substantial  relief  needed 
by  the  ijlaintiff,  such  as  a  restoration  to  full  rights  of  prop- 
erty, or  the  specific  performance  of  the  contract  after  it  has 
been  corrected.  6.  Remedies  of  Rescission  or  Cancellation^ 
or  those  by  which  an  instrument,  contract,  deed,  judgment,, 
and  even  sometimes  a  legal  relation  itself  subsisting  be- 
tween two  parties,  is,  for  some  cause,  set  aside,  avoided, 
rescinded,  or  annulled.  This  remedy,  like  the  preceding, 
is  sometimes  conferred  as  the  sole  and  final  relief  needed 
by  the   plaintiff,  but   is   often   the  preliminary   step  to   a 

(a)  The   text   is    cited    in    Iliberniii        Pac.    334     (enforcing    judgment    lien 
Rav.    &    \j.    Soo.    V.    London    &    Lan-       against  estate  of  decedent). 
oaHhire  Fire  Ins.  Co.,  138  Cal.  2r)7,  71 


121  THE   CONSTITUENT   PARTS   OF    EQUITY.  §  112 

more  effective  remedy  by  which  his  primary  right  is  de- 
clared or  restored.  7.  Remedies  of  Pecuniary  Compensa- 
tion, or  those  in  which  the  relief  consists  in  the  award  of 
a  sum  of  money.  These  remedies,  whose  final  object  is 
the  recovery  of  money,  are  of  three  distinct  species,  which 
differ  considerably  in  their  external  form  and  incidents, 
but  which  agree  in  their  substance, —  in  the  intrinsic  nature 
of  the  final  relief.  They  are  the  following:  First.  Those 
in  which  the  relief  consists  simply  in  the  recovery  of  a 
general  pecuniary  judgment;  that  is,  a  judgment  to  be 
enforced  or  collected  out  of  the  debtor's  property  generally, 
—  any  property  which  he  may  own  liable  to  be  taken  in 
satisfaction.  This  simple  pecuniary  recovery  is,  in  the  vast 
majority  of  cases,  legal,  and  not  equitable,  but  it  is  not 
unknown  in  equity.^  A  court  of  equity  occasionally  grants 
the  relief  of  compensatory  damages  in  connection  with  some 
other  specific  relief,*"  and  under  very  peculiar  circum- 
stances it  decrees  the  payment  of  damages  alone.  Several 
kinds  of  equitable  suits  are  wholly  pecuniary  in  their  relief, 
as  those  for  contribution  and  exoneration.^  Secondly. 
Those  cases  in  which  the  relief  is  not  a  general  pecuniary 
judgment,  but  is  a  decree  of  money  to  be  obtained  and  paid 
out  of  some  particular  fund  or  funds.  The  equitable 
remedies  of  this  species  are  many  in  number  and  various 
in  their  external  forms  and  incidents.  They  assume  that 
the  creditor  has,  either  by  operation  of  law,  or  from  con- 
tract, or  from  some  acts  or  omissions  of  the  debtor,  a  lien, 

1  A  few  well-known  equitable  actions  are  wholly  pecuniary  in  their  object 
and  relief,  although  not  generally  described  as  such.  For  example,  the  suit 
by  the  vendor  for  the  specific  performance  of  an  ordinary  land  contract  is 
really  brought  for  the  recovery  of  money  alone,  and  it  differs  from  the  suit 
to  enforce  the  vendor's  lien  in  the  fact  that  the  judgment  is  for  the  recovery 
of  the  money  generally,  and  not  out  of  the  land  itself  as  a  special  fund. 

(b)  The   text   is   cited   in    State   v.  (c)  The  text  is  cited  to  this  effect 

Sunapee   Dam   Co.    (N.   H.),   55   Atl.  in    Blair   v.    Smith,    114    Ind.    114,   5 

899,  912,  where  the  question  of  dam-  Am.  St.  Rep.  593,  15  N.  E.  817.     As 

ages   in   equity   suits    is   very   elabo-  to   compensatory   damages   in   equity, 

rately  discussed.  see  post,  §  237. 


§  112  EQUITY    JURISPRUDENCE.  122 

charge,  or  encumbrance  upon  some  fund  or  funds  belonging 
to  the  latter,  either  land,  chattels,  things  in  action,  or  even 
money;  and  the  form  of  the  remedy  requires  that  this  lien 
or  charge  should  be  established,  and  then  enforced,  and  the 
amount  due  obtained  by  a  sale  total  or  partial  of  the  fund, 
or  by  a  sequestration  of  its  rents,  profits,  and  proceeds.'^ 
These  preliminary  steps  may,  on  a  casual  view,  be  mislead- 
ing as  to  the  nature  of  the  remedy,  and  may  cause  it  to 
appear  to  be  something  more  than  compensatory;  but  a 
closer  view  shows  that  all  these  steps  are  merely  auxiliary, 
and  that  the  real  remedy,  the  final  object  of  the  proceeding, 
is  the  pecuniary  recovery.  Among  the  familiar  examples 
of  this  species  are  the  suit  to  foreclose  a  mortgage  of  land, 
common  throughout  the  United  States,  by  a  sale  of  the  mort- 
gaged premises  f  the  suit  to  foreclose  a  chattel  mortgage 
by  a  sale  of  the  goods;  a  suit  to  enforce  a  vendor's  lien  by 
a  sale  of  the  land;  the  creditor's  suit  to  enforce  his  equi- 
table lien  upon  the  debtor's  property  by  sale;  the  suit  to 
enforce  payment  of  a  married  woman's  contract  by  a  sale 
of  the  separate  estate  upon  which  it  is  charged;  and  gen- 
erally, all  similar  suits  the  object  of  which  is  to  enforce  an 
ecjuitable  lien  upon  a  fund,  and  thereby  to  obtain  satisfac- 
tion of  the  demand  which  it  secures.  Thirdly.  There  is 
also  another  species  of  pecuniary  remedies,  closely  anal- 
ogous to  the  last,  and  differing  from  it  only  in  the  additional 
element  of  a  distribution  of  the  final  pecuniary  awards 
among  two  or  more  parties  having  claims  either  upon  one 
common  fund  or  upon  several  funds.''     The  final  relief  in 

-  'J'hc  strict  foreclosure  by  whicli  tlie  mortgagor's  equitable  rij^ht  of  rcdciiip- 
tion  is  cut  off,  and  the  mortgagee's  legal  estate  is  perfected,  is  a  remedy  of  an 
entirely  diircrcnt  class;  it  is  in  fact  a  recovery  of  land,  the  acquisition  of  a 
coiii[)lete  title,   tlie  establishment   of  a   perfect    legal   o\vn<>rship. 

(.1)  'I'hc  text    is   (|ii()tcd    ill    Wcldon  V.  jMcCafTrey,  178  111.  107,  69  Am.  St. 

V.    Superior   Court,    l.'iS    ("al.    427,   71  Rep.    290,    '^-2    N.    K.    898     (enforcing 

I'ae.    ^^()2     (a    case    of    t'(|uitable    gar-  bailee's  lien   in  e(iiiity). 
nishment,    authorized    by    statute,    by  (e)  The   text   is  quoted   in   Wcldon 

a  materialniiin,  of  fimds  due  the  con-  v.    Superior   Court,    138    Cal.   427,   71 

tr.-ictoD  ;   ami    in    Kruipp.  Stout   <i   Co.  Pac.  502. 


123  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  112 

•all  these  cases  is  simply  pecuniary;  the  amounts  to 
which  the  different  parties  are  entitled  are  ascertained, 
and  are  obtained  by  a  distribution  of  the  fund  or  funds 
upon  which  they  are  chargeable.  Of  this  species  are 
suits  to  wind  up  partnerships  and  distribute  partner- 
ship assets;  to  settle  and  distribute  the  personal 
estates  of  decedents;  to  marshal  assets;  and  the  statutory 
proceeding  to  wind  up  the  affairs  of  insolvent  corpora- 
tions. 8.  The  Remedy  of  Accounting.  This  is  closely  anal- 
ogous to  the  remedy  of  Compensation,  and  is  generally  used 
in  connection  with  and  auxiliary  to  some  forms  of  it.  It  is 
also  a  legal  remedy,  but  has  become  to  a  great  extent  equi- 
table. It  is  a  necessary  step  in  many  forms  and  varieties 
of  pecuniary  relief^  and  sometimes  is  an  essential  prelimin- 
ary in  establishing  rights  of  property  in  lands  or  chattels. 
9.  Remedies  of  Conferring  or  Removing  Official  Functions. 
Courts  of  equity  are  empowered  by  statute  in  many  of  the 
states  to  remove  and  to  appoint  trustees  of  private  trusts, 
and  under  certain  circumstances  to  remove  and  to  appoint, 
or  provide  for  the  election  of,  the  managing  officers  of 
private  business  corporations.  10.  Remedies  of  Establish- 
ing or  Destroying  Personal  Status.  This  species  of  reme- 
dies does  not  belong  to  the  original  jurisdiction  of 
chancery,  and  so  far  as  it  exists,  is  wholly  of  statutory 
origin.  I  would  include  in  it  suits  to  obtain  a  divorce  and 
to  annul  a  marriage,''  which  in  several  of  the  states  are 
■entertained  by  equity  courts,  and  proceedings  by  which  a 
person  is  judicially  declared  to  be  of  unsound  mind  or  an 
habitual  drunkard.  Other  species  of  equitable  remedies 
have  been  created  by  statute  in  different  states,  which  do 
not  properly  belong  to  any  of  the  foregoing  classes.  The 
most  important  are  the  proceedings  for  the  dissolution  and 
winding  up  of  corporations,  and  of  enforcing  the  official 

(f)  That  an  action  for  divorce  is  a  cases  in  equity,  see  Sharon  v.  Sharon, 

"case   in   equity"   within   the   mean-  67   Cal.   185,  7   Pac.  456,  635,  8  Pac. 

ing  of  a  constitutional  provision  con-  709. 
ferring   appellate    jurisdiction    in    all 


§  113  EQUITY    JURISPRUDENCE.  124 

duties  of  corporate  officers.  The  remedial  powers  of  equity 
are  so  broad  and  so  flexible  that  there  may  be  many  other 
special  forms  of  remedy  belonging  to  its  general  jurisdic- 
tion, but  depending  so  closely  upon  the  peculiar  circum- 
stances and  relations  of  the  litigant  parties  that  they  do  not 
admit  of  classification. 

§  113.  The  equitable  remedies  also  differ  from  the  legal 
ones  in  the  manner  of  their  administration.  The  common- 
law  rules  of  procedure  are  fixed,  rigid,  arbitrary,  technical, 
while  those  of  the  equity  suit  are  natural  and  flexible. 
In  no  features  is  the  contrast  greater  than  in  respect 
to  parties  and  to  judgments.  The  doctrines  of  the  common 
law  concerning  the  parties  to  actions,  their  joint  or  several 
rights  and  liabilities,  and  the  form  of  judgment  based  upon 
these  respective  kinds  of  right  and  liability,  are  the  crown- 
ing technicality  of  the  system,  resting  upon  verbal  premises 
which  mean  nothing,  and  built  up  from  these  premises  by 
the  most  accurate  processes  of  mere  verbal  logic.  It  was  a. 
fundamental  principle  that  no  one  could  be  a  plaintiff  unless 
he  was  alone  or  jointly  with  the  co-plaintiffs  entitled  to  the 
whole  recovery,  nor  a  defendant  unless  he  was  alone  or 
jointly  with  the  co-defendants  liable  to  the  entire  demand. 
The  common  law  knew  no  such  thing  as  the  making  a  per- 
son plaintiff  who  did  not  share  the  right  of  recovery,  or  de- 
fendant who  was  not  liable  for  the  whole  claim,  merely  for 
the  purpose  of  binding  him,  by  the  judgment  and  cutting  off 
any  possible  right  on  his  part}  The  judgment  must  be  one 
single,  entire  recovery,  both  as  affects  the  plaintiffs  and  the 

1  This  rule  lias  been  changed  by  tlie  new  procedure  as  adopted  in  several 
of  tlie  western  states,  which  very  properly  requires  that  when  an  action  ia 
brou<^ht  by  the  aHsif;rnce  of  a  thing  in  action,  except  of  negotiable  paper,  the- 
assignor  must  be  made  a  party  either  plaintifT  or  defendant,  so  that  he  may 
Ite  lieard,  if  necessary,  on  the  question  as  to  the  validity  of  the  alleged  assign- 
ment, and  any  future  claim  against  tlie  debtor  on  his  part  may  be  barred  by 
the  judgment.  Tiiis  innovation,  which  strikes  at  the  very  root  of  the  com- 
mon-law theory  as  to  parties  and  judgments,  has  been  in  operation  for  years- 
witliout  the  slightest  difliculty,  and  its  advantages  are  patent.  This  single 
fact  demonstrates  Ihe  utlcr  worthlessness,  the  mere  verbal  character,  of  the' 
fco-rall'd  bgal  reasoning  by  wiiich  the  common-law  dogmas  have  been  upheld. 


125  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  114 

■defendants;  and  no  one  could  be  a  plaintiff  who  did  not 
thus  hold  the  legal  title,  even  though  all  beneficial  interest 
in  the  cause  of  action  belonged  to  another.  On  this  ground 
the  assignor  of  a  thing  in  action  not  negotiable  must  be  the 
plaintiff,  and  the  ability  of  an  assignee  to  bring  an  action 
is  wholly  the  result  of  statute.  Where  the  action  was  by 
two  or  more  plaintiffs,  the  judgment  was  necessarily  a 
single  one  in  favor  of  all  considered  as  one  undivided  body. 
It  was  impossible  that  each  one  of  several  plaintiffs  could 
recover  a  different  sum  of  money  by  way  of  debt  or  dam- 
ages. Even  if  the  action  was  for  the  jDOssession  of  chattels 
or  land,  different  plaintiffs  could  not  recover  distinct  chat- 
tels or  tracts  of  land ;  the  judgment  was  for  all  the  chattels 
as  one  subject-matter,  or  for  the  whole  land  as  a  unit,  and  if 
the  plaintiff' 's  rights  were  different  they  must  be  undivided, 
so  that  each  share,  being  as  j^et  unpartitioned,  should  extend 
throughout  the  entire  mass,  and  the  judgment  be  for  all  as 
joint  or  co-owners.  The  same  rule  extended  to  the  defend- 
ants. If  there  were  two  or  more,  one  single  judgment  must 
be  rendered  against  all ;  different  recoveries  against  sepa- 
rate defendants  in  the  same  action  were  impossible.  The 
common  law  permitted  no  affirmative  relief,  no  recovery  of 
debt  or  damages,  land  or  chattels,  in  favor  of  a  defendant 
against  a  plaintiff,  except  perhaps  in  tlie  little  used  and  now 
virtually  obsolete  legal  action  of  ^'  account."  Even  in  the 
case  of  "  Recoupment  of  Damages,"  which  was  a  recent  in- 
vention of  the  common-law  courts,  the  demand  on  behalf  of 
the  defendant  was  only  used  defensively.  The  exceptional 
case  of  "  Set-off,"  in  which  alone  an  affirmative  recovery 
always  pecuniary  was  ever  possible  in  favor  of  the  defend- 
ant, was  wholly  of  a  statutory  origin. 

§  114.  The  equitable  doctrines  with  respect  to  parties  and 
judgments  are  wholly  unlike  those  which  prevailed  at  the 
common  law,  different  in  their  fundamental  conceptions,  in 
their  practical  operation,  in  their  adaptability  to  circum- 
stances, and  in  their  results  upon  the  rights  and  duties  of 
litigants.    The  governing  motive  of  equity  in  the  adminis- 


§  115  EQUITY    JURISPRUDENCE.  12G 

tration  of  its  remedial  system  is  to  grant  full  relief,  and  ta 
adjust  in  the  one  suit  the  rights  and  duties  of  all  the  parties, 
which  really  grow  out  of  or  are  connected  with  the  subject- 
matter  of  that  suit."  Its  fundamental  principle  concerning 
parties  is,  that  all  persons  in  w^liose  favor  or  against  whom 
there  might  be  a  recovery,  however  partial,  and  also  all 
persons  who  are  so  interested,  although  indirectl}',  in  the 
subject-matter  and  the  relief  granted,  that  their  rights  or 
duties  might  be  affected  by  the  decree,  although  no  substan- 
tial recovery  can  be  obtained  either  for  or  against  them, 
shall  be  made  parties  to  the  suit ;  and  it  is  not  ordinarily  a 
matter  of  substantial  importance  whether  they  are  joined 
as  plaintiffs  or  as  defendants,  although  this  question  of 
procedure  is  regulated  to  a  certain  extent  by  rules  based 
upon  considerations  of  convenience  rather  than  upon  any 
essential  requirements  of  the  theory.  The  primary  object 
is,  that  all  persons  sufficiently  interested  may  be  before  the 
court,  so  that  the  relief  may  be  properly  adjusted  among 
those  entitled,  the  liabilities  properly  apportioned,  and  the 
incidental  or  consequential  claims  or  interests  of  all  may 
be  fixed,  and  all  may  be  bound  in  respect  thereto  by  the 
single  decree.'' 

§  115.  The  fundamental  principle  of  equity  in  relation 
to  judgments  is,  that  the  court  shall  determine  and  adjust 
the  rights  and  liabilities  concerning  or  connected  with  the 
subject-matter  of  all  the  parties  to  the  suit,  and  shall  grant 
the  particular  remedy  appropriate  in  amount  and  nature 
to  each  of  those  entitled  to  any  relief,  and  against  each  of 
those  who  are  liable^  and  finally  shall  so  frame  its  decree 
as  to  bar  all  future  claims  of  any  party  before  it  which  may 
arise  from  the  subject-matter,  and  which  are  within  the 

(a)  The  text  is  quoted  in  Siever  v.  of  garnishment  suits  to  reach  exempt 
Union  Par.  R.  Co.  (Ncbr.),  93  N.  W.  wages)  ;  cited  in  Behlow  v.  Fisher, 
043.  102   Cal.   208,   30   Pac.   509    (dissent- 

(b)  The  text  is  quoted  in  Siever  v.  ing  opinion;  dissolution  of  partner- 
Union  Pac.  R.  Co.   (Nebr.),  93  N.  W.  ship). 

043  (injunetion  against  a  multiplicity 


127  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  115- 

scope  of  the  present  adjudication."  In  rendering  its  de- 
cree, a  court  of  equity  is  not  hampered  by  any  of  the  arbi- 
trary regulations  which  restrict  the  action  of  common-law 
tribunals;  and  especially,  it  is  not  bound  to  give  a  single 
judgment  in  favor  of  the  co-plaintiffs  regarded  as  one  body, 
nor  against  the  defendants  as  a  group  of  persons  jointly 
or  equally  liable.  In  this  respect  it  possesses  a  full  free- 
dom to  adai:)t  its  relief  to  the  particular  rights  and  liabili- 
ties of  each  party,  and  to  determine  the  special  interests  of 
all,  so  far  as  they  are  legitimately  connected  with  the  sub- 
ject-matter, and  properly  within  the  scope  of  the  adjudi- 
cation. It  has  power  to  grant  :'elief  to  some  of  the  co- 
plaintiffs,  and  not  to  others,  and  against  some  of  the  co-de- 
fendants, and  not  against  others;  it  can  confer  different 
reliefs  in  kind  and  extent  to  different  plaintiffs  and  against 
different  defendants;  it  can  bestow  affirmative  relief  upon 
all  or  some  of  the  defendants  against  all  or  some  of  the 
plaintiff's;  and  finally,  it  can  determine  and  adjust  the 
rights  and  duties  of  the  co-plaintiffs,  or  of  the  co-defend- 
ants, as  between  themselves.  I  would  not  be  understood  as 
asserting  that  this  extreme  flexibility  or  apportionment  of 
remedies  and  obligations  is  common  in  ordinary  equitable 
suits,  nor  that  it  is  without  limit  and  control;  on  the  con- 
trary, it  is  regulated  by  rules  of  pleading  and  procedure  so 
contrived  that  all  parties  may  be  informed  of  the  claims 
made  against  them,  and  of  the  liabilities  to  which  they  are 
exposed.  My  object  here  is  simply  to  state  the  general  prin- 
ciples of  the  Ecpity  Remedial  System,  and  to  describe  the 
power  which  inheres  in  a  court  of  equitable  jurisdiction  to 
mold  its  decree  and  to  adjust  its  reliefs  so  as  to  establish 
and  enforce  the  particular  rights  and  liabilities,  legitimately 
connected  with  the  subject-matter,  and  within  the  scope  of 
the  judgment,  of  all  the  parties  to  the  action.  The  modes 
in  which  this  power  should  be  exercised  according  to  the 

(a)  The  text  was  quoted  in  Union  portioning  the   use  of   the  waters  of 

Mill   &   Mining   Co.   v.   Dangberg,   81  a    stream    among   numerous   riparian 

Fed.  73,   119,  by  Hawley,  D.  J.,  and  proprietors, 
the  principle  applied  in  a  decree  ap- 


§  116  EQUITY    JURISPRUDElSrCE.  128 

rules   of  pleading  and  procedure  must  be  considered   in 
another  place. 

§  116.  The  remedial  system  of  equity  as  a  whole,  with 
its  great  variety  of  specific  remedies  which  enforce  the  very 
primary  rights  and  duties  of  persons  rather  than  give  pecu- 
niary equivalents  for  their  violation,  with  its  power  to 
enlarge  the  scope  of  these  ordinary  forms  of  relief,  and 
even  to  contrive  new  ones  adapted  to  new  circumstances, 
with  its  comprehensive  rules  concerning  parties,  and  with 
its  unlimited  control  over  the  form  and  material  of  its  judg- 
ments, possesses  enormous  advantages  over  the  narrow,  in- 
flexible, and  artificial  methods  of  the  common  law.  The  re- 
formed American  procedure  has  attempted  to  combine  the 
two,  or  rather  to  enlarge  the  equity  doctrines  and  rules,  so 
that  they  may  embrace  all  actions,  legal  as  well  as  equitable ; 
and  in  those  states  where  the  courts  have  accepted  and  car- 
ried out  the  reform  in  its  true  spirit,  this  attempt  has  been 
successful  as  far  as  is  possible  from  the  essential  elements 
of  the  two  jurisdictions.  A  complete  amalgamation,  how- 
ever, is  not  possible,  so  long  as  the  jury  trial  is  retained  in 
legal  actions.  There  is  certainly  no  irapossibility  nor  even 
difficulty  in  requiring  a  jury  to  decide  the  issues  of  fact  upon 
which  the  right  to  manj^  kinds  of  equitable  remedy  depends ; 
this  is  the  province  of  a  jury  in  legal  actions,  the  court  pro- 
nouncing the  judgment  upon  their  verdict.  A  jury  is  clearly 
incompetent  to  frame  and  deliver  a  decree  according  to  the 
doctrines  and  methods  of  equity;  but  there  can  be  no  real 
obstacle  in  the  way  of  its  ascertaining  the  facts  by  its  ver- 
dict, and  leaving  the  court  to  shape  the  decree  and  award 
the  relief  based  upon  these  facts  in  many  species  of  equi- 
table remedy.  That  the  issues  of  fact  may  be  complicated 
is  no  insurmountable  difficulty;  for  no  issues  of  fact  are 
ordinarily  more  complicated  than  those  involving  elements 
of  fraud,  wliich  have  always  been  regarded  as  pecu- 
liarly within   the  province  of  a  jury.^     There   are,   how- 

1  ThiH  j)ropoHition  of  tlic  toxt,  which  mif(lit  otlicrwise  have  been  regarded  as 
a  mere  theoretical  conception,  has  been  actually  wrought  out  into  practice  by 


129  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  117 

ever,  classes  of  equitable  suits  in  which  tlie  issues  of 
fact  upon  which  the  relief  depends  are  so  intimately 
connected  with  the  relief  itself  that  their  decision  is 
plainly  beyond  the  competence  of  a  jury,  and  must  of 
necessity  be  left  to  the  court  or  judge.  Of  this  character, 
for  example,  are  all  suits  for  the  distribution  and  marshal- 
ing of  assets,  and  in  fact  all  those  in  which  the  final  relief 
depends  upon  an  accounting.  While  a  partial  amalgamation 
of  law  and  equity  into  one  remedial  system  may  be  theo- 
retically possible  by  extending  the  jury  trial  to  certain  equi- 
table actions  in  which  it  is  not  now  used,  I  am  strongly  of 
the  opinion  that  the  jury  trial  in  civil  causes  of  a  legal  na- 
ture is  a  practical  obstacle  to  any  more  complete  combina- 
tion of  the  two  systems  than  has  already  been  accomplished 
by  the  reformed  procedure.^ 

§  117.  To  sum  up  the  discussions  of  the  foregoing  sec- 
tion: The  entire  municipal  law,  so  far  as  it  is  concerned 
with  private  civil  relations,  comprises, —  1.  Legal  rules 
defining  legal  primary  rights  and  duties  applicable  to  most 
of  the  facts  and  circumstances  which  have  been  brought 
within  the  range  of  jural  relations;  2.  Legal  rules  defin- 
ing legal  remedial  rights  and  duties  and  remedies,  which 
are  few  in  number,  and  very  limited  in  their  nature  and 
form ;  3.  Equitable  rules  defining  equitable  primary  rights 
and  duties  applicable  to  certain  classes  of  jural  relations, 

the  courts  of  Pennsylvania.  For  a  long  term  the  legislature  of  that  state  re- 
fused to  confer  any  equitable  jurisdiction  upon  its  courts.  As  a  consequence, 
and  in  order  to  prevent  a  failure  of  justice,  the  courts  contrived  a  system  of 
administering  many  equitable  remedies  and  enforcing  many  equitable  rights 
by  means  of  the  common-law  forms  of  action.  This  was  accomplished  in  the 
manner  suggested  in  the  text.  In  the  common-law  action  the  facts  showing 
the  equitable  right  were  admitted  into  the  pleadings,  the  jury  passed  upon 
the  issues  of  fact,  legal  and  equitable,  and  on  their  verdict  the  court  rendered 
its  judgment,  which,  by  being  made  conditional,  was  enabled  in  an  indirect 
manner  to  maintain  the  equitable  right  and  grant  the  equitable  remedy.  In 
this  manner  the  common-law  action  of  ejectment  was  made  the  means  of  en- 
forcing specific  performance,  and  of  protecting  the  equitable  estates  of  parties, 
where  their  land  was  held  under  an  implied  trust,  etc. 

2  See  Pomeroy  on  Remedies  and  Remedial  Rights,  §§  51,  52,  in  which  this 
question  is  more  fully  examined. 

Vol.  T  ~  9 


§  117  EQUITY    JURISPRUDENCE.  130 

which  rights  and  duties  are  supplementary  and  additional 
rather  than  contradictory  to  the  legal  ones  affecting  the 
same  relations;  4.  Equitable  rules  defining  equitable  pri- 
mary rights  and  duties  applicable  to  a  comparatively  few 
facts  and  circumstances,  which  are  actually  conflicting  with 
the  corresponding  legal  rights  and  duties;  5.  Equitable 
rules  defining  equitable  remedial  rights  and  duties  and 
remedies,  which  are  much  more  various  in  their  nature  and 
form,  specific  in  their  object,  and  flexible  in  their  operation^ 
than  the  remedies  supplied  by  the  law.  There  is,  therefore, 
no  clashing  nor  uncertainty  with  respect  to  the  final  absolute 
rights  and  duties  of  individuals,  except  so  far  as  such  con- 
flict or  doubt  may  arise  from  the  comparatively  few  rules  of 
the  fourth  class,  where  the  antagonism  between  equity  and 
the  law  does  actually  exist.  It  is  certainly  strange,  inex- 
plicable except  upon  historical  grounds,  that  in  an  age  and 
country  advanced  in  civilization,  the  municipal  law  should 
jDresent  such  an  anomaly,  that  a  married  woman's  agree- 
ment, for  example,  should  be  utterly  void  by  the  rules  of  the 
law,  while,  according  to  the  doctrines  of  equity,  it  might  be 
valid  and  enforceable  out  of  her  separate  estate;  or  that 
a  certain  contract  for  the  sale  of  laud  should  be  treated 
as  an  absolute  nullity  by  a  court  of  law,  and  should  be 
regarded  as  binding  and  specifically  executed  by  a  court 
of  equity.  If  any  change,  however,  is  to  be  made  for  the 
purpose  of  removing  this  discord,  it  must  be  in  the  legal 
and  not  in  the  equitable  rules.  The  latter  are,  in  all  in- 
stances, the  more  just,  and  more  in  accordance  with  the 
sentiments  and  opinions  of  the  age;  while  the  former  are 
necessarily  subordinate,  some  of  them  have  become  practi- 
cally obsolete,  and  all  of  them  would  be  totally  abandoned 
in  any  thorough  revision  or  scientific  codification  of  our 
entire  jurisprudence. 


131  THE   PRINCIPLES   OF    CLASSIFICATION.      §§  118,  llj) 


SECTION  V. 

THE  PRINCIPLES  OF  CLASSIFICATION. 

ANALYSIS. 

§   118.  Importance  and  difficulty  of  a  correct  classification. 
§§   119,  120.  Different  grounds  which  might  be  taken  for  a  classification. 
§§   121-125.  Ordinary  mode  of  classification  according  to  the  nature   of  the 
jurisdiction. 

§   121.  In  the  three  divisions  of  exclusive,  concurrent,  and  auxiliary. 
§§   122,  123.  Different  modes  of  carrying  out  this  system  by  various  writers. 
§§   124,  125.  Fundamental  objections  to  this  system  of  classification. 
§§   126,  127.  The  true  principles  of  classification  in  the  present  condition  of 
Equity. 

§   128.  Plan  and  order  of  arrangement  adopted  in  this  treatise. 

§  118.  Importance  and  Difficulty  of  a  Correct  Classification 

The  practical  as  well  as  the  scientific  value  of  a  treatise  on. 
equity  jurisprudence  must  largely  depend  upon  the  Prin- 
ciples of  Classification  adopted  in  the  arrangement  and  dis- 
cussion of  the  subject-matter.  At  the  very  outset,  however,, 
we  encounter  a  most  serious  obstacle.  From  the  partial 
character  of  equity  as  a  system,  from  the  fact  that  it  covers 
only  a  comparatively  small  portion  of  the  doctrines  and 
rules,  facts  and  circumstances,  embraced  in  the  entire  na- 
tional jurisprudence,  its  orderly  and  consistent  arrange- 
ment necessarily  becomes  a  matter  of  great  difficulty.  There 
are  so  many  breaks,  omissions,  and,  so  to  speak,  empty 
spaces  in  the  system  of  equity,  that  it  is  almost  impossible 
to  follow  any  one  plan  or  method  throughout  the  whole 
extent.  It  is  plain,  however,  that  the  principles  and  modes 
adopted  should  conform  to  the  present  condition  of  equity, 
and  to  its  existing  relations  with  the  law, 

§  119.  Different  Grounds  of  Classification, —  There  are 
several  features  or  elements  of  the  equity  jurisprudence 
which  might,  with  more  or  less  propriety,  be  selected  as. 
the  basis  of  a  classification.  Among  these  are  certain  im- 
portant external  facts  or  events,  such  as  Fraud,  Mistake^ 
Accident,  and  the  like,  which  are  the  occasions  of  numer- 
ous equitable  rules.     These  external  facts  have  been  treated 


§  120  EQUITY    JURISPRUDENCE.  132 

by  some  writers  as  distinct  heads  or  departments  of  equity 
jurisprudence,  and  they  are  often  so  described  in  the  gen- 
eral language  of  judicial  opinions.  A  jurisprudence,  how- 
ever, does  not  consist  of  the  mere  facts  or  events  which 
are  the  occasions  of  rules  and  rights,  but  of  the  rules  which 
create  the  rights,  and  of  the  rights  and  duties  themselves 
which  result  from  these  rules.  Although  such  external 
facts  and  events  as  fraud,  mistake,  accident,  and  the  like 
are  the  occasions  of  numerous  equitable  rules,  and  there- 
fore figure  largely  in  the  practical  workings  of  the  equi- 
table jurisdiction,  they  are  also  the  occasions  from  which 
many  legal  rules  and  rights  take  their  origin;  they  are  not 
peculiar  to  equity,  and  if  adopted  as  a  basis  of  classifica- 
tion, would  tend  to  confuse  its  doctrines  with  those  of  the 
law.  There  is  another  objection,  of  much  more  weight. 
These  external  facts  are  the  sources  of  a  great  variety  both 
of  rights  and  remedies.  Fraud,  for  example,  affects  a  large 
part  of  equity  jurisprudence.  It  is  the  occasion  of  equi- 
table rights  of  property,  of  equitable  rights  concerning 
contract,  of  equitable  rights  growing  out  of  special  per- 
sonal relations,  such  as  cestui  que  trust  and  trustee,  and  of 
many  equitable  remedies,  such  as  cancellation,  reforma- 
tion, specific  enforcement,  accounting,""  and  others.  It  is 
plain,  therefore,  that  these  species  of  external  facts  and 
events,  important  as  they  undoubtedly  are,  do  not  furnish 
any  sufficient  basis  for  a  practical  nor  for  a  scientific 
"Classification.  They  do  not  suggest  any  grounds  for  dis- 
criminating between  rights  and  remedies  which  are  essen- 
tially different;  they  would  tend  to  produce  confusion, 
rather  than  to  sui)ply  a  means  of  analyzing  and  arranging 
the  doctrines  in  an  orderly  and  distinct  manner. 

§  120.  Another  possible  basis  for  a  classification  might 
be  found  in  certain  grand  underlying  principles,  which  are 
often  called  the  Maxims  of  Equity,  of  which  the  following 

(n)  TJic  Ifxi  iH  fitod  in  Stockton  042;  McCormick  v.  Hartley,  107  Ind. 
■v.  AnderHon,  40  N.  J.  Eq.  486,  4  Atl.        248,  6   N.  E.   357. 


133  THE   PRINCIPLES   OF    CLA.SSIFICATION.  §  121 

are  given  merely  as  examples :  He  who  seeks  equity  must 
do  equity;  equality  is  equity;  equity  regards  as  done  what 
ought  to  be  done;  equity  looks  at  the  substance  and  real 
intent,  and  not  at  the  form,  etc.  It  must  be  said  of  these 
grand  principles,  that  they  are  a  component  part  of  equity 
jurisprudence,  and  not  mere  external  facts  or  events,  like 
fraud  and  mistake.  They  are  the  fruitful  sources  of  doc- 
trine whence  are  derived  a  vast  number  of  particular  rules 
concerning  both  primary  rights  and  remedies.  But  the 
objection  last  mentioned  in  the  preceding  paragraph  applies 
with  even  greater  force  to  them.  These  principles  are  too 
broad,  comprehensive,  and,  so  to  speak,  universal,  to  be  taken 
as  the  basis  of  any  practical  classification.  They  run  through 
all  parts  of  the  system,  and  are  the  source  of  so  many  and 
different  rights  and  remedies,  that  they  furnish  no  lines 
of  division  nor  grounds  of  distinguishing  one  from  another,, 
and  of  arranging  the  whole  according  to  any  fixed  plan.. 
These  principles  in  themselves  are  of  the  highest  impor- 
tance to  an  accurate  understanding  of  equity  as  a  whole; 
they  are  the  unfailing  fountains  whence  flow  the  various 
streams  of  right  and  justice;  the  perennial  sources  of 
practical  rules  applicable  to  the  ever-changing  events  of 
the  social  life ;  the  foundation-stones  upon  which  the  beauti- 
ful structure  of  equity  has  been  erected.  The  student  who 
has  made  all  these  principles  a  part  of  his  mental  habit, 
who  has,  as  it  were,  incorporated  them  into  his  very  intel- 
lectual being,  has  already  mastered  the  essence  of  equity, 
and  has  made  the  acquisition  of  its  particular  rules  an 
easy  and  delightful  labor." 

§  121.  Ordinary  Mode  of  Classification. —  The  plan  of 
arrangement  which  has  been  followed  by  most  authors  of 
general  treatises  is  based  upon  the  relations  which  for- 
merly existed  between  equity  and  the  law  when  the  twa 
jurisdictions  were  as  yet  wholly  distinct,  and  were  admin- 
istered by  separate  tribunals.     Its  divisions  were  made, 

(a)  Tlie    text    is    cited    in    Otis    v.    Gregory,  111  Ind.  504,  13  N.  E.  39. 


§  122  EQUITY    JURISPRUDENCE.  13'4 

not  according  to  any  inherent  quality  or  nature  either  of 
rights  or  remedies,  but  according  to  a  purely  accidental 
■quality  of  the  jurisdiction.  The  fact  that  this  jurisdictional 
criterion  was  merely  accidental  and  incidental,  is  demon- 
strated by  its  having  been  utterly  abolished  in  England 
^nd  in  many  of  our  states  without  any  change  in  the  equi- 
table rights  and  remedies  themselves,  but  with  only  a 
change  in  the  mode  of  administering  those  rights  and 
remedies  by  a  separate  judicial  proceeding.  This  plan  of 
classification  separates  the  whole  body  of  equity  into  the 
three  following  grand  divisions:  1.  That  containing  the 
matters  in  respect  of  which  courts  of  equity  had  an  exclu- 
sive jurisdiction;  2.  That  containing  matters  in  respect  of 
which  courts  of  equity  had  jurisdiction  concurrently  with 
courts  of  law;  3.  That  containing  matters  in  respect  of 
'which  the  equity  jurisdiction,  though  exclusive,  was  wholly 
exercised  in  aid  of  certain  actions  or  proceedings  which 
belonged  exclusively  to  courts  of  law.  In  brief,  the  classi- 
fication which  has  ordinarily  been  adopted  in  the  text- 
books is,  the  Exclusive  Jurisdiction,  the  Concurrent  Juris- 
diction, and  the  Auxiliary  Jurisdiction. 

§  122.  Before  examining  the  merits  of  this  plan,  a  brief 
description  of  the  manner  in  which  it  has  been  followed 
by  different  authors  will  be  given.  A  great  diversity  exists 
among  text-writers  who  have  adopted  this  plan,  in  the 
modes  which  they  have  employed,  in  the  accuracy  and  con- 
sistency with  which  they  have  adhered  to  the  principles,  in 
the  criteria  which  they  have  taken  to  determine  the  nature 
and  scope  of  the  three  grades  of  jurisdiction,  and,  as  a 
consequence,  in  their  arrangement  of  particular  topics  and 
heads  of  eciuity  in  one  or  the  other  of  these  three  divisions. 
By  some  writers  the  element  of  exclusiveness  or  of  concur- 
rence in  the  jurisdiction  has  been  regarded  more  in  connec- 
tion with  the  primary  rights,  estates,  and  interests  created 
by  equity  than  with  its  remedies.  But  they  have  not  fol- 
lowed this  method  consistently,  since  their  order  of 
arrangement  has,  to  a  partial  extent,  been  determined  by 


135  THE   PRINCIPLES   OF    CLASSIFICATION.  §  123 

the  nature  of  the  remedies,  and  even  by  mere  external  facts 
or  events  which  are  the  occasions  of  rights  and  duties.  It 
has  resulted  from  this  radical  difference  in  their  mode  of 
interpreting  and  carrying  out  the  plan,  that  there  is  no 
agreement  among  these  authors  in  their  arrangement  of 
particular  topics  under  the  three  general  divisions  of 
jurisdiction,^ 

§  123.  Other  authors,  in  adopting  this  general  plan  of 
classification,  have  applied  the  criterion  of  exclusiveness 
or  concurrence  wholly  to  the  remedies  which  equity  gives, 
and  have  determined  the  various  topics  falling  within 
one  or  the  other  of  the  three  divisions  in  accordance  with 
the  nature  of  these  remedies;  that  is,  whether  they  belong 
exclusively  to  the  equity  jurisdiction,  or  are  conferred  by 
the  law  courts,  or  are  entirely  auxiliary  to  the  prosecution 
of  legal  actions.  This  method  has  the  advantage  of  con- 
sistency and  simplicity,  and  is  not  open  to  the  objection  of 
confusion ;  but  it  necessarily  places  the  primary  rights  and 
duties  of  equity  in  a  very  subordinate  position,  and  thus 
presents  a  one-sided  and  even  misleading  view  of  the 
equity  jurisprudence  considered  in  its  totality.^    Some  text- 

§  122,  1  I  take  simply  as  an  illustration  the  Principles  of  Equity,  by  E.  H. 
T.  Snell  (London,  1874) .  In  the  "  Concurrent  "  jurisdiction,  this  author  places 
both  "  Specific  Performance "  and  "  Injunction,"  although  as  remedies  both 
are  exclusively  equitable.  The  reason  of  this  arrangement  seems  to  be  that 
the  law  has  jurisdiction  over  contracts  generally,  and  over  some  of  the  rights 
and  interests  which  may  be  protected  by  injunction.  Under  the  "  Auxiliary  " 
jurisdiction,  he  strangely  enough  places  the  remedy  of  "  Cancellation,"  "  Bills 
to  Establish  Wills,"  "  Bills  Quia  Timet,"  and  "  Bills  of  Peace."  The  first 
of  these  is  an  exclusive  equitable  remedy,  and  is  constantly  used  as  a  means 
of  establishing  or  restoring  equitable  rights  and  estates.  The  three  others 
are  in  every  case  final  reliefs,  declaring  and  establishing  rights  of  property. 
It  is  difficult  to  conceive  how  a  suit  to  "  quiet  title  "  can  be  regarded  as  be- 
longing to  the  "Auxiliary"  jurisdiction.  This  author,  like  many  others, 
places  fraud,  actual  or  constructive,  mistake,  and  accident  as  distinct  heads 
of  concurrent  jurisdiction.  The  objections  to  such  an  arrangement  are  patent. 
In  the  first  place,  as  already  said,  these  matters  are  not  in  any  sense  parts 
of  equity  jurisprudence.  In  the  second  place,  they  are  the  occasions  whence 
equitable  primary  rights  and  remedies  of  the  most  exclusive  character  take 
their  rise,  as  well  as  those  which  are  legal. 

§  123,  1  By  far  the  best  example  of  this  method,  I  think,  is  the  Doctrine  of 
Equity,  by  John  Adams.  6th  Am.  ed.,    1873.     His  three  chief  divisions  are: 


§124  EQUITY    JURISPRUDENCE.  136 

writers  of  high  reputation,  while  professing  to  classify  par- 
ticular topics  under  the  three  divisions  according  to  the 
nature  of  the  remedies,  have  failed  to  carry  out  this  mode 
of  arrangement  with  consistency,  and  have  thus  left  the 
student  without  any  certain  clew  to  their  system  of 
classification.^ 

§  124.  Even  if  the  plan  of  classification  according  to 
the  nature  of  the  equity  jurisdiction,  considered  in  its  re- 
lations with  that  of  the  law,  possessed  at  one  time  certain 
practical  advantages  which  on  the  whole  rendered  it  pref- 
erable to  any  other  (and  I  do  not  admit  this  proposition 
as  unquestionably  true),  the  recent  and  great  changes  made 

1.  Jurisdiction  in  cases  in  which  the  law  courts  cannot  enforce  a  riglit;  mean- 
ing thereby  a  remedial  right,  and  Intending  to  include  in  the  division  those 
remedies  which  are  exclusively  equitable.  Under  this  head  he  places  Specific 
Performance.  Reformation,  Cancellation  and  Rescission,  Injunction,  Bills  of 
Peace  and  to  Quiet  Title,  Suits  to  Foreclose  or  to  Redeem  Mortgages,  En- 
forcement of  Trusts,  and  others.  2.  Jurisdiction  in  cases  in  which  the  law 
courts  cannot  administer  a  right, — that  is,  cannot  fully  and  advantageously 
enforce  it;  the  division  including  remedies  which  are  within  the  concurrent 
jurisdiction  of  equity.  Under  this  head  he  ranges  Account,  Partition,  Set- 
tlement of  Partnership  Matters  and  Estates  of  Decedents,  Marshaling  of 
Assets,  Contribution  and  Exoneration,  etc.  3.  Jurisdiction  which  is  wholly 
auxiliary,  including  only  Discoverj^  Perpetuation  of  Testimony,  and  Examina- 
tion of  Witnesses  abroad.  This  author  is  perfectly  consistent  in  following  out 
the  principles  which  he  has  adopted ;  and  he  does  not  fall  into  the  common 
error  of  taking  fraud,  mistake,  accident,  and  the  like  as  distinct  heads  of 
equity  jurisprudence.  The  result  is,  that  Mr.  Adams's  book  is  clear,  distinct, 
without  confusion,  and  from  his  stand-point  presents  a  very  correct  and 
consistent  view  of  equity.  But  this  view  is  certainly  a  partial  one.  The 
representation  of  equity  as  consisting  wholly  of  remedies  is  incorrect  in  its 
fundamental  conception,  and  when  all  equitable  primary  rights,  interests,  and 
estates  are  treated  merely  as  incidents  of  the  remedies,  such  a  representation 
is  actually  made,  even  thougli  it  was  vmdesigncd  on  the  part  of  the  author. 

2  It  cannot  be  denied  that  Judge  Story's  Commentaries  are  liable  to  this 
criticism,  and  the  result  is  plainly  shown  in  his  classification  and  arrange- 
ment and  treatment  of  particular  topics.  While  certain  remedies  are  properly 
ranged  under  the  exclusive  jurisdiction,  and  others  under  the  concurrent,  as 
is  done  by  Mr.  Adams,  this  critirion  is  oft  en  abandoned;  no  clear  distinction 
JH  made  between  romedioH  or  the  rigiits  to  them,  and  the  equitable  estates, 
interests,  rights,  and  obligations  which  are  primary  in  their  nature;  and 
finally,  the  mere  externiil  farts  of  fraud,  mistake,  etc.,  are  regarded  as  veri- 
table and  important  heads  of  equity  jurisprudence,  and  are  discussed  at  great 
length. 


137  THE    PRINCIPLES    OF    CLASSIFICATION.  §  124 

by  statute  have,  in  England,  and  in  many  of  the  states 
entirely,  and  in  other  states  to  a  large  extent,  destroyed 
the  basis  of  fact  —  the  relations  between  equity  and  the 
law  —  upon  which  the  very  principles  of  the  classification 
were  founded.  In  England  and  in  all  the  commonwealths 
of  this  country  where  the  reformed  procedure  prevails, 
there  is  no  longer  any  auxiliary  jurisdiction  of  equity,  nor 
any  reason  for  calling  its  remaining  functions  either  ex- 
clusive or  concurrent,  since  legal  and  equitable  primary 
rights  are  maintained,  legal  and  equitable  remedial  rights 
are  enforced,  and  legal  and  equitable  remedies  are  granted 
by  the  same  tribunal  and  in  the  same  action.  In  most  of  the 
remaining  states  where  the  two  jurisdictions  are  still  kept 
distinct,  the  "  auxiliary  "  equitable  proceedings  have 
either  been  abolished  or  have  become  practically  obsolete; 
and  in  all  of  them  the  powers  of  the  law  courts  have  been  so 
enlarged,  equitable  rights  and  interests  are  to  such  an  ex- 
tent cognizable  by  way  of  defense  in  legal  actions,  and  so 
many  matters  which  once  came  within  the  province  of 
equity  have  been  placed  under  a  complete  system  of  statu- 
tory regulation,  and  their  administration  given  to  special 
tribunals,  that  the  ancient  separation  into  exclusive  juris- 
diction no  longer  furnishes  an  adequate  nor  even  a  true 
principle  upon  which  to  classify  the  body  of  equity  juris- 
prudence. This  method,  which  has  been  commonly 
adopted  by  text-writers,  is  therefore  in  direct  conflict  with 
the  reformed  procedure  now  used  in  more  than  half  of  the 
states  and  territories,  as  well  as  in  England  and  its  chief 
colonial  dependencies;  and  it  is  also  opposed  to  the  ten- 
dencies of  legislation  in  all  the  other  states,  with  a  very  few 
exceptions.  There  is  nothin'g  which  so  hinders  the  progress 
of  legal  reform,  and  so  long  delays  the  general  acceptance 
according  to  its  true  intent  of  a  new  legal  system,  as  the 
persistent  retention  of  the  nomenclature,  methods,  and 
classification  which  had  been  established  as  the  outgrowth 
and  formal  expression  of  the  ancient  notions  discarded 
and   abandoned   b3^   the   legislative   enactment.     For   this 


§  125  EQUITY   JURISPRUDENCE.  138 

reason,  if  for  no  other,  I  am  strongly  of  the  opinion  that 
a  plan  of  arranging  and  presenting  the  equity  jurisprudence 
which  had  its  origin  solely  in  the  fact  that  law  and  equity 
were  originally  two  distinct  jurisdictions,  and  were  adminis- 
tered by  separate  tribunals,  is  not  at  all  adapted  to  the  con- 
dition of  the  municipal  law,  and  of  the  relations  between  its 
departments,  which  now  exists  throughout  the  United 
States,  nor  to  the  national  tendencies  shown  in  the  changes 
which  are  constantly  made  by  the  state  legislatures, 
especially  the  tendencies  towards  a  scientific  revision  and 
codification  of  the  municipal  law,  which  will  more  and  more 
obliterate  the  external  distinctions  between  equity  and 
the  law. 

§  125.  There  is,  however,  another,  and  as  it  seems  to  me 
more  fundamental,  objection  to  this  method  of  classification, 
based  upon  the  assumed  relations  between  legal  and  equi- 
table jurisdiction.  Whenever  some  single  feature  or  partial 
element  of  an  extensive  system  is  taken  as  the  basis  of 
classifying  its  component  parts,  the  inevitable  result  must 
be  an  imperfect  and  even  incorrect  view  of  the  system  as  a 
whole.  The  choice  of  the  equitable  remedies  alone  as  the 
fixed  points  to  which  all  doctrines  and  rules  are  referred, 
and  the  classification  of  these  remedies  solely  according  to 
their  relations  with  the  jurisdictions  possessed  by  the  two 
courts,  have  tended  irresistibly  to  produce  a  confused  and 
one-sided  conception  of  the  nature  and  functions  of  equity.^ 
Under  the  influence  of  such  a  conception,  some  writers  have 
taught  that  equity  consists  entirely  of  certain  remedies,  and 
have  denied  that  it  creates  any  primary  rights  and  duties 
whatever.  I  have  already  shown  the  erroneous  character 
of  this  theory,  and  shall  not  dwell  upon  it  further. 

1  As  an  illiiHtration  of  tliis  proposition,  it  is  impossible  to  lay  down  any 
comprolionHivc,  conipicto,  and  afcnrate  rules  concerning  the  extent  of  the 
equity  jurisdiction,  wlien  tlu!  equitable  and  legal  remedies  are  taken  as  tho 
only  elements  for  determining  the  question.  The  primary  rights,  estates, 
and  interests  created  by  equiJ,y  must  necessarily  enter  into  any  general  solu- 
tion of  tlic  prolderii. 


139  THE   PRINCIPLES    OF    CLASSIFICATION,       §§  126.  127 

§  126.  True  Principles  of  Classification —  A  comprehensive 
treatment  of  equity  which  shall  conform  to  its  real  nature 
and  its  present  condition  as  a  branch  of  the  jurisprudence 
now  existing  in  the  United  States  should  present  all  of  its 
component  parts  in  their  true  relations  with  each  other  and 
with  the  law,  and  should  adopt  such  principles  of  classifi- 
cation as  will  follow  the  essential  lines  of  separation  be- 
tween these  parts,  and  furnish  a  correct  and  practical  guide 
for  the  student  and  the  lawyer.  No  method  can  be  accurate 
nor  really  practical  which,  in  the  first  place,  does  not  recog- 
nize the  fact  that  equity  consists  of  two  grand  divisions, 
the  Primary  Rights  and  Duties,  Estates  and  Interests  which 
it  creates,  and  the  Remedial  Rights  and  Duties  enforced  by 
the  various  Remedies  which  it  confers;  and  which,  in  the 
second  place,  does  not  present  the  principles,  doctrines,  and 
rules  concerning  these  Primary  Rights,  Estates,  and  Inter- 
ests, separate  and  distinct  from  those  which  relate  to  the 
Remedial  Rights  and  Remedies.  The  classification  of  the 
remedies,  being  no  longer  based  upon  any  notion  of  exclu- 
sive and  concurrent  jurisdictions,  should  be  made  in  ac- 
cordance with  their  own  inherent  nature  and  the  nature  of 
the  primary  rights,  the  violation  of  which  they  are  intended 
to  redress  or  relieve.  Underlying  these  equitable  estates, 
interests,  and  rights,  and  these  equitable  remedies,  and  con- 
stituting the  sources  from  which  most  of  them  have  been 
derived,  there  are  certain  equitable  principles  of  a  most 
broad,  comprehensive,  and  general  nature  and  application. 
These  principles  run  through  every  branch  of  the  equity 
jurisprudence;  from  them  a  large  part  of  the  particular 
doctrines  and  rules  of  that  system,  both  concerning  equitable 
estates  and  interests,  and  equitable  remedies,  have  been  de- 
veloped. They  seem  to  require,  therefore,  in  any  well-con- 
structed arrangement,  a  separate  treatment,  preliminary 
to  the  examination  of  those  more  special  topics  which  are 
directly  connected  with  the  equitable  estates,  interests, 
rights,  and  remedies. 

§  127.    The  order  which  should  be  observed  in  the  treat- 


§  128  EQUITY    JURISPRUDENCE.  140 

ment  of  these  two  grand  divisions  which  make  up  the  whole 
of  equity  jurisprudence  may  well  be  determined  by  consid- 
erations of  convenience,  rather  than  by  the  requirements  of 
a  scientific  precision.  The  division  of  equity  which  is  con- 
cerned solely  with  remedies  is  much  broader  and  more  com- 
prehensive than  that  which  is  concerned  with  equitable  pri- 
mary rights  and  interests.  The  remedies  administered  by 
equity  are  not  confined  to  cases  in  which  equitable  primary 
rights  have  been  violated;  they  are  not  restricted  to  the 
single  purpose  of  maintaining  equitable  estates  and  inter- 
ests. As  has  already  been  stated  in  a  preceding  section,  the 
peculiar  reliefs  of  equity  are  given,  under  certain  well-es- 
tablished conditions  of  fact,  for  the  violation  of  legal  pri- 
mary rights  and  for  the  protection  and  support  of  legal 
estates  and  interests.  In  other  words,  while  every  equitable 
right  and  interest  is  enforced  and  preserved  by  an  appro- 
j)riate  equitable  remedy,  the  remedial  jurisdiction  of  equity 
extends  beyond  these  somewhat  narrow  limits,  and  em- 
braces many  classes  of  legal  rights  and  interests  for  the  vio- 
lation of  which,  under  the  existing  circumstances,  the  law 
gives  no  adequate  relief.  Before,  however,  entermg  upon 
either  of  these  two  grand  divisions  of  the  work,  a  prelimi- 
nary investigation  into  the  nature  and  extent  of  the  equity 
jurisdiction  is  necessary  as  a  foundation  for  all  subsequent 
discussions. 

§  128.  I  shall  in  the  following  treatise  adopt  the  general 
plan,  principles  of  classification,  and  method  of  treatment 
described  in  the  foregoing  paragraphs.  The  entire  work 
will  bo  separated  into  four  parts.  Part  First  will  contain 
an  inquiry  into  the  nature  and  extent  of  the  Equity  Juris- 
diction as  it  now  exists  in  the  United  States,  both  in  its 
oi'iginal  and  general  form,  and  as  limited  or  regulated  by 
tlie  statutoj-y  legislation  oi"  tlie  various  states  and  of  the 
(V)ngress  of  the  United  States.  The  three  remaining  parts 
will  treat  of  the  E(|uity  Jurisprudence,  or  the  doctrines 
wliirli  ,'irf'  administered  by  the  courts  in  the  exercise  of  their 
cquitiihlc  jurisdiction.    I*<ul  Second  will  discuss  the  grand 


141  THE    PRINCIPLES    OF    CLASSIFICATION.  §  128 

principles  and  maxims  which  are  the  foundation  of  Equity 
Jurisprudence,  and  the  sources  of  its  particuhir  doctrines, 
and  will  also  describe  some  of  the  most  important  facts  and 
events  which  are  the  occasions  of  equitable  primary  and 
remedial  rights  and  duties.  Part  Third  will  contain  that 
portion  of  Equity  Jurisprudence  which  consists  of  Primary 
Eights  and  Duties,  or  in  other  words,  of  equitable  estates, 
titles,  and  interests.  Part  Fourth  will  contain  that  portion 
of  Equity  Jurisprudence  which  consists  of  remedial  rights 
and  duties  and  of  remedies.  This  description  does  not  in- 
clude any  discussion  of  mere  procedure.  The  term  "  Eeme- 
dies,"  as  it  has  been  defined,  and  as  it  will  be  used  through- 
out the  book,  does  not  embrace  the  rules  of  procedure,  but 
only  the  reliefs  which  are  granted  for  a  violation,  actual  or 
threatened,  of  legal  and  equitable  rights. 


PART  FIRST. 


PART  FIRST. 

THE  NATURE  AND  EXTENT  OF  EQUITY  JUEIS- 

DICTION. 


CHAPTER  FIRST. 

THE    GENERiLL    DOCTRINE    CONCERNING    THE 
JURISDICTION. 


SECTION  L 

FUNDAMENTAL  PRINCIPLES  AND  DIVISIONS. 

ANAXYSIS. 

f  129.  Equity  jurisdiction  defined. 

f  130.  Requisites  in  order  that  a  case  may  come  within  it. 

S  131.  Distinction  between  the  existence  of  equity  jurisdiction  and  th* 
proper  exercise  of  it. 

I  132.  Inadequacy  of  legal  remedies,  how  far  the  test. 

I   133.  Equity  jurisdiction  depends  on  two  facts:  the  existence  of  equi- 
table interests,  and  the  inadequacy  of  legal  remedies. 
f  S  134, 135.  How  far  the  jurisdiction  is  in  personam,  how  far  in  rem. 

§  136.  Equity   jurisdiction  threefold, —  exclusive,   concurrent,  and  aux- 
iliary. 
{§  137, 138.  What  embraced  in  the  exclusive  jurisdiction. 
{§  139, 140.  What  embraced  in  the  concurrent  jurisdiction. 

§  141.  Cases  may  fall  imder  both. 
f  i  142-144.  What  embraced  in  the  auxiliary  jurisdiction. 

S  145.  Order  of  subjects. 

§  129.  Equitable  Jurisdiction  Defined —  It  is  important  to 
obtain  at  the  outset  a  clear  and  accurate  notion  of  what  is 
meant  by  the  term  **  Equity  Jurisdiction."  It  is  used  in 
contradistinction  to  "  jurisdiction  "  in  general,  and  to 
**  common-law  jurisdiction  "  in  particular.  In  its  most  gen- 
eral sense  the  term  *'  jurisdiction,"  when  applied  to  a  court, 
is  the  power  residing  in  such  court  to  determine  judicially  a 
Vol.  I  — 10 


§  129  EQUITY   JURISPRUDENCE.  146 

given  action,  controversy,  or  question  presented  to  it  for 
decision.  If  this  power  does  not  exist  with  reference  to 
any  particular  case,  its  determination  by  the  court  is  an 
absolute  nullity ;  if  it  does  exist,  the  determination,  however 
erroneous  in  fact  or  in  law,  is  binding  upon  the  parties  until 
reversed  or  set  aside  in  some  proceeding  authorized  by  the 
practice,  and  brought  for  that  express  purpose.^     It  is 

1  The  true  meaning  of  "  jurisdiction  "  is  so  often  misunderstood,  and  the 
word  is  80  often  misapplied,  that  I  shall  quote  a  passage  from  the  opinion  of 
Mr.  Justice  Folger  in  the  recent  case  of  Hunt  v.  Hunt,  72  N.  Y.  217,  228-230, 
28  Am.  Rep.  129,  in  which  the  subject  is  explained  in  a  very  clear  and  con- 
vincing manner :  "  Jurisdiction  of  the  subject-matter  does  not  depend  upon 
the  ultimate  existence  of  a  good  cause  of  action  in  the  plaintiff  in  the  par- 
ticular case.  See  Groenvelt  v.  Burwell,  1  Ld.  Raym.  466,  467.  A  court  may 
have  jurisdiction  of  all  actions  in  assumpsit  of  that  subject-matter.  An 
action  by  A  in  which  judgment  is  demanded  against  B,  as  the  indorser  of  a 
promissory  note,  falls  within  that  jurisdiction.  Such  court  may  entertain 
and  try  the  action,  and  give  a  valid  and  effectual  judgment  in  it.  Though 
it  should  appear  in  proof  that  there  never  had  been  presentment  and  demand, 
nor  notice  of  non-payment,  yet  a  judgment  for  A  against  B,  though  against 
the  facts,  without  facts  to  sustain  it,  would  not  be  void  as  rendered  without 
jurisdiction.  It  would  be  erroneous,  and  liable  to  reversal  on  review.  Until 
reviewed  and  reversed,  it  would  be  valid  and  enforceable  against  B,  and 
entitled  to  credit  when  brought  in  play  collaterally.  Jurisdiction  of  the 
subject-matter  is  power  to  adjudge  concerning  the  general  question  involved, 
and  is  not  dependent  upon  the  state  of  facts  which  may  appear  in  a  particular 
case,  arising,  or  which  is  claimed  to  have  arisen,  under  that  general  question. 
One  court  hag  jurisdiction  in  criminal  cases;  another  in  civil  cases;  each  in 
its  sphere  has  jurisdiction  of  the  subject-matter.  Yet  the  facts,  i.  e.,  the 
acts  of  the  party  proceeded  against,  may  be  the  same  in  a  civil  case  as  in  a 
criminal  case;  as,  for  instance,  in  a  civil  action  for  false  and  fraudulent 
representations  and  deceit,  and  in  a  criminal  action  for  obtaining  property 
by  false  pretenses.  We  should  not  say  that  the  court  of  civil  powers  had 
jurisdiction  of  the  criminal  action,  nor  vice  versa,  though  each  had  power  to 
pass  upon  allegations  of  the  same  facts.  So  there  is  a  more  general  meaning 
to  the  phrase  '  subject-matter,'  in  this  connection,  than  power  to  act  upon  a 
particular  state  of  facts.  It  is  the  power  to  act  upon  the  general,  and,  so  to 
speak,  the  abstract,  question,  and  to  determine  and  adjudge  whether  the  par- 
ticular facts  presented  call  for  the  exercise  of  the  abstract  power.  A  suitor 
for  a  divorce  may  come  into  any  court  of  the  state  in  which  he  is  domiciled, 
which  is  empowered  to  entertain  a  suit  therefor,  and  to  give  judgment  be- 
tween liusband  and  wife  of  a  dissolution  of  their  married  state.  If  he  does 
not  establish  a  cause  for  divorce,  jurisdiction  to  pronounce  judgment  does 
not  leave  the  court.  It  has  power  to  give  judgment  that  he  has  not  made  out 
a  case.  That  judgment  would  be  so  valid  and  effectual  as  to  bind  him  there- 
after, and  to  be  res  adjudicata  as  to  him  in  another  like  attempt  by  him.     If 


147  FUNDAMENTAIi   PRINCIPLES    AND    DIVISIONS.  §  130* 

plain  that  the  term  used  in  this  strict  sense  may  be  applied 
to  courts  of  equity  as  well  as  to  any  other  tribunals.  With 
this  signification  of  the  word,  it  would  be  said  that  an 
equity  court  has  no  jurisdiction  to  try  the  issues  arising 
upon  an  indictment,  and  to  render  judgment  in  a  criminal 
prosecution ;  the  entire  proceeding  would  be  null  and  void. 
On  the  other  hand,  it  is  equally  plain  that  this  strict  mean- 
ing is  not  always  given  to  the  term  "  equity  jurisdiction,'^ 
as  it  is  ordinarily  used.  The  proceedings  and  judgment  of 
a  court  of  chancery  or  of  a  court  clothed  with  equity  powers 
are  not  necessarily  null  and  void  because  the  action  is  not. 
one  which  comes  within  the  scope  of  the  ''  equity  jurisdic- 
tion "  in  the  common  acceptation  of  that  phrase,  or  in  other 
words,  because  the  claim  is  one  for  which  there  is  a  full,  ade- 
quate, and  complete  remedy  at  law.^  This  well-settled  rule- 
furnishes  a  decisive  test,  and  shows  that  when  ordinarily 
speaking  of  the  '*  equity  jurisdiction  "  we  do  not  thereby 
refer  to  the  general  power  inherent  in  a  court  to  decide  a 
controversy  at  all, —  a  power  so  essential  that  its  absence 
renders  the  decision  a  mere  nullity,  but  we  intend  by  the 
phrase  to  describe  some  more  special  and  limited  judicial 
authority. 

§  130.  "  Equity  jurisdiction,"  therefore,  in  its  ordinary 
acceptation,  as  distinguished  on  the  one  side  from  the  gen- 

that  court,  however,  should  err,  and  give  judgment  that  he  had  made  out  his 
case,  jurisdiction  remains  in  it  so  to  do.  The  error  is  to  be  corrected  in  that 
very  action.  It  may  not  be  shown  collaterally  to  avoid  the  judgment,  while 
it  stands  unreversed.  The  judgment  is  in  such  case  also  res  adjudicata 
against  the  party  cast  in  the  judgment.  We  conclude  that  jurisdiction  of  the 
subject  matter  is  the  power  lawfully  conferred  to  deal  with  the  general 
subject  involved  in  the  action." 

2  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528 ;  Cummings  v.  Mayor,  etc., 
11  Paige,  596;  Creely  v.  Bay  State  B.  Co.,  103  Mass.  514;  Amis  v.  Myers,  16 
How.  492,  493;  Sexton  v.  Pike,  13  Ark.  193.  In  some  instances  where  the 
facts  very  clearly  bring  the  case  within  the  common-law  jurisdiction,  the 
court  of  equity  will  itself  take  the  objection  at  any  stage  of  the  suit  and  dis- 
miss it,  even  though  no  objection  had  been  raised  by  the  parties;  but  even  in 
such  cases  a  judgment  of  the  equity  court  sustaining  the  action  and  granting 
the  relief  would  not  necessarily  be  a  nullity.  See  Parker  v.  Winnipiseogeo 
Co.,  2  Black,  545,  550,  551;  Hipp  v.  Babin,  19  How.  271,  277,  278. 


I  130  EQUITY   JURISPRUDENCE.  148 

•eral  power  to  decide  matters  at  all,  and  on  the  other  from 
the  jurisdiction  *'  at  law  "  or  ''  common-law  jurisdiction," 
is  the  power  to  hear  certain  kinds  and  classes  of  civil  causes 
according  to  the  principles  of  the  method  and  procedure 
adopted  by  the  court  of  chancery,  and  to  decide  them  in 
accordance  with  the  doctrines  and  rules  of  equity  jurispru- 
dence, which  decision  may  involve  either  the  determination 
of  the  equitable  rights,  estates,  and  interests  of  the  parties 
"to  such  causes,  or  the  granting  of  equitable  remedies.  In 
order  that  a  cause  may  come  within  the  scope  of  the  equity 
jurisdiction,  one  of  two  alternatives  is  essential ;  either  the 
primary  right,  estate,  or  interest  to  be  maintained,  or  the 
violation  of  which  furnishes  the  cause  of  action,  must  be 
equitable  rather  than  legal ;  ^  or  the  remedy  granted  must  be 
in  its  nature  purely  equitable,  or  if  it  be  a  remedy  which 
may  also  be  given  by  a  court  of  law,  it  must  be  one  which, 
trnder  the  facts  and  circumstances  of  the  case,  can  only  be 
made  complete  and  adequate  through  the  equitable  modes 
of  procedure.^    At  the  same  time,  if  a  court  clothed  with 

1  Reese  v.  Bradford,  13  Ala.  837;  Sessions  v.  Sessions,  33  Ala.  522,  525; 
Torrey  v.  Camden,  etc.,  R.  R.  Co.,  18  N.  J.  Eq.  293;  Ontario  Bank  v.  Mum- 
ford,  2  Barb.  Ch.  596,  615;  Woodruff  v.  Robb,  19  Ohio,  212,  214;  Wolfe  v. 
Scarborough,  2  Ohio  St.  361,  368;  Heilman  v.  Union  Canal  Co.,  37  Pa.  St. 
100,  104;  McCullough  v.  Walker,  20  Ala.  389,  391;  Woleott  v.  Robbins,  28 
Conn.  230;  Green  v.  Spring,  43  111.  280;  Vick  v.  Percy,  7  Smedes  &  M.  256, 
268,  45  Am.  Dec.  303;  Abbott  v.  Allen,  2  Johns.  Ch.  519,  7  Am.  Dec.  554; 
Waddell  v.  Beach,  9  N.  J.  Eq.  793,  795;  Milton  v.  Hogue,  4  Ired.  Eq.  415,  422; 
Johnson  v.  Connecticut  Bank,  21  Conn.  148,  157;  Perkins  v.  Perkins,  16 
Mich.  162,  167;  Bolles  v.  Carli,  12  Minn.  113,  120;  Echols  v.  Hammond,  30 
Miss.  177;  Hipp  v.  Babin,  19  How.  271,  277,  278;  Wing  v.  Hall,  44  Vt.  118, 
123;  Detroit  v.  Board  of  Public  Works,  23  Mich.  546,  552;  Simmons  v.  Hen- 
dricks, 8  Ired.  Eq.  84-86,  55  Am.  Dec.  439;  Pratt  v,  Northam,  5  Mason,  95, 
104;  Thompson  v.  Brown,  4  Johns.  Ch.  619,  631;  Hunt  v.  Danforth,  2  Curt. 
692,  603;  Gay  v.  Edwards,  30  Miss.  218,  230;  Bush  v.  Golden,  17  Conn.  594; 
Gilliam  v.  Chancellor,  43  Miss.  437,  5  Am.  Rep.  498. 

2Brinkerhoff  v.  Brown,  4  Johns.  Ch.  671;  Mason  v.  Piggott,  11  111.  85,  89; 
ClauBsen  v.  Lafrenz,  4  G.  Greene,  224-227;  Kimball  v.  Grafton  Bank,  20 
N.  H.  347,  352;  Ferson  v.  Sanger,  Daveis,  252,  259,  261;  Curtis  v.  Blair,  26 
Miss.  309,  327,  59  Am.  Doc.  257;  Dickenson  v.  Stoll,  8  N.  J.  Eq.  294,  298; 
Perkins  v.  Perkins,  16  Mich.  162,  167;  Barrett  v.  Sargeant,  18  Vt.  365,  369; 
Jordan  v.  Faircloth,  27  Ga.  372,  376;  Bassctt  v.  Brown,  100  Mass.  355;  Mor- 
gan V.  Palmer,  48  N.  H.  336;  Hall  v.  Joiner,  1  S.  C.  186;  Matter  of  Broderick's 


149  rUNDAMENTAL   PBINCIPLES   AND   DIVISIONS.  §  130' 

the  equity  jurisdiction  as  thus  described  should  hear  and 
decide,  according  to  equitable  methods,  a  case  which  did 
not  fall  within  the  scope  of  the  equity  jurisprudence,  be- 
cause both  the  primary  right  invaded  constituting  the  cause 
of  action  and  the  remedy  granted  were  wholly  legal,  and 
belonging  properly  to  the  domain  of  the  law  courts,  such 
judgment,  however  erroneous  it  might  be  and  liable  to  re- 
versal, would  not  necessarily  be  null  and  void.""  On  the 
contrary,  as  will  be  more  fully  stated  hereafter,  the  objec-^ 
tion  that  the  case  does  not  come  within  this  so-called  equity 
jurisdiction  must  ordinarily  be  definitely  raised  by  the  de- 
fendant at  the  commencement  of  the  proceedings,  or  else 
it  will  be  regarded  as  waived,  and  the  judgment  will  not 
even  be  erroneous.'*  In  some  instances,  however,  where  the 
equitable  functions  of  the  court  are  specifically  defined  by 
statute,  or  the  facts  show  very  clearly  that  the  rights  in- 
volved in  the  controversy  and  the  remedies  demanded  are 
purely  legal,  and  completely  within  the  scope  of  ordinary 
legal  proceedings,  the  court  of  equity  will  itself  take  the 

Will,  21  Wall.  503,  504;  Comstock  v.  Henneberry,  66  111.  212;  Suter  v. 
Matthews,  115  Mass.  253;  Santacruz  v.  Santacruz,  44  Miss.  714,  720;  Glasten- 
bury  V.  McDonald's  Administrator,  44  Vt.  450,  453;  Brandon  v.  Brandon,  48 
Miss.  222,  231;  Scruggs  v.  Blair,  44  Miss.  406,  412;  Carr  v.  Silloway,  105 
Mass.  543;  Sanborn  v.  Braley,  47  Vt.  171;  Doremus  v.  Williams,  4  Hun,  458; 
Carlisle  v.  Cooper,  21  N.  J.  Eq.  576;  Edsell  v.  Briggs,  20  Mich.  429;  McGunn 
T.  Huntin,  29  Mich.  477;  Gay  v.  Edwards,  30  Miss.  218,  230. 

3  This  conclusion  results  from  the  principle  laid  down  by  Folger,  J.,  in  the 
passage  above  cited.  If  the  court  has  jurisdiction  over  the  subject-matter  of 
equitable  rights,  interests,  and  remedies,  its  jurisdiction  does  not  depend 
upon  its  deciding  correctly  as  to  the  existence  of  such  rights,  or  as  to  the 
granting  of  such  remedies.  The  jurisdiction  itself  exists  independently  of 
the  particular  case  over  which  it  is  exercised ;  jurisdiction,  in  its  most  general 
and  accurate  sense  of  a  power  to  decide  concerning  certain  subject-matter,  in- 
volves the  power  to  decide  wrongly  as  well  as  correctly. 

4  Cummings  v.  Mayor,  etc.,  11  Paige,  596;  Bank  of  Utica  v.  Mersereau,  3 
Barb.  Ch.  528:  Amis  v.  Myers.  16  How.  492;  Creely  v.  Bay  State  B.  Co.,  103 
Mass.  514;  Sexton  v.  Pike,  13  Ark.  193. 

(a)  The  text  is  cited  to  this  eflfect  holding    that    consent   cannot   confer 

in  Freer  v.  Davis,  52  W.  Va.  1,  94  jurisdiction  to  try  a  disputed  title  in 

Am.  St.  Rep.  895,  43  S.  E.  164,  172,  suit  to  enjoin  trespass, 
dissenting     opinion;      the     majority 


§  lol  hQUITy    JUfilSPBUDBNCE.  150 

objection  at  any  stage  of  the  cause,  and  will  dismiss  the 
suit,  although  no  objection  has  in  any  way  been  raised  by 
the  parties.'^'' 

§  131/  It  is  plain,  from  the  foregoing  definitions,  that  the 
question  whether  a  given  case  falls  within  the  equity  juris- 
diction is  entirely  different  and  should  be  most  carefully 
distinguished  from  the  question  whether  such  case  is  one  in 
which  the  relief  peculiar  to  that  jurisdiction  should  be 
granted,  or  in  which  the  equity  powers  of  the  court  should 
be  exercised  in  maintaining  the  primary  right,  estate,  or  in- 
terest of  the  plaintiff.  The  constant  tendency  to  confound 
these  two  subjects,  so  essentially  different,  has  been  pro- 
ductive of  much  confusion  in  the  discussion  of  equitable 
doctrines.  Equity  jurisdiction  is  distinct  from  equity  juris- 
prudence. One  example  will  suffice  to  illustrate  this  im- 
portant proposition.  A  suit  to  enforce  the  specific  perform- 
ance of  a  contract,  or  to  reform  a  written  instrument  on 
the  ground  of  mistake,  must  always  belong  to  the  equity 
jurisdiction,  and  to  it  alone^  since  these  remedies  are  wholly 
beyond  the  scope  of  common-law  methods  and  courts;  but 
whether  the  relief  of  a  specific  performance,  or  of  a  refor- 
mation, shall  be  granted  in  any  given  case,  must  be  de- 
termined by  an  application  of  the  doctrines  of  equity 
jurisprudence  to  the  special  facts  and  circumstances  of  that 
case.  The  same  is  true  of  every  species  of  remedy  which 
may  be  conferred,  and  of  every  kind  of  primary  right,  es- 
tate, or  interest  which  may  be  enforced  or  maintained,  by 
a  court  possessing  the  equitable  jurisdiction.  In  other 
words,  the  equity  jurisdiction  may  exist  over  a  case,  r^ 
though  it  is  one  which  the  doctrines  of  equity  jurisprudence 
forbid  any  relief  to  be  given,  or  any  right  to  be  maintained. 

•"'Hipp  V.  Bahin,  19  IIow.  271,  278;  Parker  v.  Winnipiseogee  Co.,  2  Black, 
645,  MO,  551. 

(b)  This    passage    of    the    text    is  (a)  The   text   is  cited   in  Thorn  & 

quoted  in  Hanna  v.  Reeves,  22  Wash.  Hunkins  Lime  &  Cement  Co.  v.  Citi- 

«,  60  Pac.  02,  but  held  not  applicable  zens'   Bank,   158   Mo.   272,   59   S.   W. 

"to  the  facts  of  the  case.  109. 


151  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  132 

This  conclusion  is  very  plain,  and  even  commonplace;  and 

yet  the  "  equity  jurisdiction  '*  is  constantly  confounded 
with  the  right  of  the  plaintiff  to  maintain  his  suit,  and  to 
obtain  the  equitable  relief.  This  is,  in  fact,  making  the 
power  to  decide  whether  equitable  relief  should  be  granted 
to  depend  upon,  and  even  to  be  identical  with,  the  actual 
granting  of  such  relief. 

§  132.  Extent  of  the  Jurisdiction.—  Having  thus  generally 
defined  ''  equity  jurisdiction,"  I  shall  proceed  with  the  most 
important  and  practical  inquiry  as  to  its  extent  and  limita- 
tions, and  with  the  examination  of  the  kinds  and  classes  of 
cases  over  which  it  may  be  exercised.  The  attempt  has  been 
made  to  furnish  one  comprehensive  test  for  the  solution  of 
all  questions  which  may  arise  as  to  the  existence  of  the  ju- 
risdiction,— to  reduce  all  special  rules  to  one  general 
formula.  To  this  end,  it  has  often  been  said  by  courts  as 
well  as  by  text-writers  that  the  equity  jurisdiction  extends 
to  and  embraces  all  civil  cases,  and  none  others,  in  which 
there  is  not  a  full,  adequate,  and  complete  remedy  at  law.* 
As  has  already  been  stated,  some  writers  have  gone  so  far 
as  to  assert  that  equity  jurisprudence  consists  wholly  in  a 
system  of  remedies,  and  that  the  only  rights  created  and 
conferred  by  it  are  remedial  rights,  that  is,  rights  to  obtain 
some  remedy;  and  according  to  their  theory,  its  jurisdic- 
tion is  of  course  to  be  measured  by  the  absence  or  existence 
of  adequate  remedies  at  the  law.^ 

1  See,  as  illustrations,  the  following  among  many  such  cases :  Earl  of  Ox- 
ford's Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291,  and  notes;  Grand  Chute  v. 
Winegar,  15  Wall.  373;  Insurance  Co.  v.  Bailey,  13  Wall.  616;  Hipp  v.  Babin, 
19  How.  271,  278;  Parker  v.  Winnipiseogee  Lake,  etc.,  Co.,  2  Black,  545, 
650,  551. 

2  See  Adams's  Equity,  Introduction,  p.  9,  6th  Am.  ed.  Mr.  Adams  says : 
Equity  "does  not  create  rights  which  the  common  law  denies;  but  it  gives 
eflfectual  redress  for  the  infringement  of  existing  rights,  where,  by  reason  of 
the  special  circumstances  of  the  case,  the  redress  at  law  would  be  inadequate." 
See  also  Introd.,  p.  12:  Now,  if  equity  "gives  eflfectual  redress  for  the  in- 
fringement of  existing  rights  "  (and  the  whole  passage  shows  that  he  is  speak- 
ing of  existing  primary  rights),  it  is  plain  that  the  "  existing  rights  "  thus  in- 
fringed upon  and  redressed  must  have  drawn  their  existence  from  some 
«ource,  either  from  the  law  or  from  equity.     It  is  absolutely  certain  that 


§  133  EQUITY   JUEISPKUDENCE.  152 

§  133.  The  general  criterion  which  has  thus  been  pro- 
posed is,  however,  insufficient  and  misleading.  Although 
the  inadequacy  of  legal  remedies  explains,  and  is  even  nec- 
essary to  explain,  the  interposition  of  equity  in  certain 
classes  of  cases,  it  wholly  fails  to  account  in  any  consistent 
and  correct  manner  for  the  entire  equity  jurisdiction.  The 
history  of  the  court  of  chancery  shows  that  all  its  powers 
cannot  be  referred  to  this  source.  It  is  true  that  the  com- 
mon-law modes  of  procedure  are  utterly  inadequate  to 
meet  all  the  ends  of  justice,  and  to  administer  all  the  reme- 
dies which  are  granted  by  equity ;  and  that  in  some  general 
sense  equity  is  established  to  supply  this  defect  in  the  law. 
But  the  absence  of  full,  adequate,  and  complete  remedies 
at  law  does  not  constitute  a  basis  upon  which  to  rest  the 
whole  equity  jurisdiction,  nor  furnish  a  practical  explana- 
tion of  all  the  doctrines  and  rules  which  make  up  the  equity 
jurisprudence.  No  theory  is  scientifically  complete,  nor 
practically  efficient,  which  does  not  recognize  two  distinct 
sources  and  objects  of  the  equity  jurisdiction,  namely,  the 
primary  rights,  estates,  and  interests  which  equity  juris- 

many  of  the  "  existing  rights  "  which  are  thus  redressed  by  equity,  even  if 
not  denied  by  the  law,  are  neither  created  nor  recognized  by  the  law.  Whence, 
for  example,  do  the  rights  of  the  cestui  que  trust  of  land  arise?  Such  rights 
"  exist,"  and  when  infringed  upon  they  are  "  eflfectually  redressed  "  by  equity. 
Rights  cannot  exist  without  some  creative  source  from  which  they  derived 
their  eflBcacy.  The  law  certainly  does  not  create,  nor  even  acknowledge,  the 
existence  of  any  rights  belonging  to  the  cestui  que  trust.  The  conclusion  i» 
inevitable  that  these  rights  are  created  by  equity.  Even  Mr.  Adams  admits 
the  existence  of  these  primary  rights  independent  of  the  remedies  for  their 
violation ;  and  to  deny  that  they  are  created  by  equity  is  to  run  into  «> 
palpable  absurdity  for  the  purpose  of  maintaining  an  untenable  theory.  If 
it  should  be  said,  in  opposition  to  this  conclusion,  that  the  only  rights  which 
the  law  does  not  itself  create  nor  recognize  are  the  very  remedial  rights 
themselves  given  by  equity,  the  rights  to  obtain  the  remedies  furnished  by 
the  equity  methods,  the  answer  is  very  simple.  In  the  first  place,  this  argu- 
ment is  a  mere  begging  of  the  question,  a  mere  reasoning  in  a  circle;  and 
in  the  second  place,  the  statement  is  without  any  foundation  in  fact.  There 
are  large  and  numerous  classes  of  rights,  estates,  and  interests  maintained 
and  enforced  by  equity,  but  not  recognized  by  the  law,  which  are  in  every 
sense  of  the  term  primary, —  as  much  so  as  the  legal  estate  in  fee  in  land; 
and  some  of  these  equitable  primary  riglits  are,  in  truth,  not  merely  un« 
recognized,  but  actually  denied  by  the  law. 


153  FUNDAMENTAL.   PRINCIPLES   AND    DIVISIONS.     §§  134,  135 

prudence  creates  and  protects,  and  the  remedies  whicli  it 
confers.  These  two  facts  in  combination  can  alone  define 
the  extent  and  fix  the  limits  of  the  equity  jurisdiction.* 

§  134.  Some  writers  have  argued  that  the  equitable  juris- 
diction is  to  be  regarded  as  wholly  remedial,  and  that 
equity  itself  does  not  create  any  rights  of  property  or  other 
primary  rights,  because  the  court  of  chancery,  as  they  say, 
only  acts  in  personam  against  the  parties,  and  never  in  rem 
upon  the  subject-matter  of  a  judicial  controversy.  It  is 
said  that  a  decree  of  the  court  never  operates  by  virtue  of 
its  own  inherent  efficacy  to  create  or  to  transfer  an  estate, 
right,  or  interest ;  that  such  decree  never  executes  itself,  nor 
furnishes  any  means  or  instruments  by  which  it  may  be  exe- 
cuted without  the  intervention  and  act  of  the  party  against 
whom  it  is  rendered;  that  the  plaintiff  in  equity  never, 
merely  by  means  of  the  decree  in  his  favor,  either  recovers 
possession  of  the  land  or  other  subject-matter,  or  becomes 
vested  with  a  title  to  or  estate  therein;  and  that  the  court 
simply  orders  some  act  to  be  done,  a  conveyance  to  be  exe- 
cuted, an  instrument  to  be  surrendered  up  and  canceled,  pos- 
session to  be  delivered,  and  the  like,  and  then  merely  uses 
a  moral  coercion  upon  the  defendant^  by  means  of  fine  and 
imprisonment,  to  compel  him  to  do  what  is  directed  to  be 
done  in  the  judgment.  This  radical  difference  between  the 
effect  of  a  decree  in  equity  and  a  judgment  at  law,  it  is 
urged,  shows  that  there  are  no  equitable  primary  rights,  no 
equitable  estates  or  interests,  distinct  and  separate  from 
the  rights  to  obtain  such  remedies  as  are  administered  by 
the  court  of  chancery. 

§  135.  There  may  be  some  plausibility  in  this  argument 
on  its  surface,  but  when  it  is  examined  with  care,  and  under 

1  The  correctness  of  this  view  of  the  equitable  jurisdiction  and  of  equity 
jurisprudence  is  acknowledged  and  asserted  by  the  most  able  and  learned 
among  modem  text-writers.  Mr.  Spence,  in  particular,  though  using  a 
terminology  somewhat  different  from  that  which  I  have  adopted,  makes  this 
theory  the  basis  of  his  classification  and  of  his  whole  treatment  of  equity 
jurisprudence. 


§  135  EQUITY   JURISPRUDENCE.  154 

the  light  of  history,  all  its  force  disappears.  The  early- 
chancellors,  from  prudential  motives  alone,  and  to  avoid  a 
direct  conflict  with  the  common-law  courts,  adopted  this 
method  of  acting,  as  they  said,  upon  the  consciences  of  de- 
fendants ;  and  the  practice  which  they  invented  has,  with  the 
English  national  devotion  to  established  forms,  continued 
to  modern  times.  But  it  is  certainly  a  complete  confound- 
ing of  the  essential  fact  with  the  external  form,  to  say  that 
such  a  mere  method  of  procedure,  adopted  solely  from  con- 
siderations of  policy,  determines  the  nature  of  the  equitable 
jurisdiction,  and  demonstrates  the  non-existence  of  any 
equitable  primary  rights,  estates,  and  interests.  If  there 
had  been  any  necessary  connection  between  the  proceedings 
and  remedies  of  chancery  and  this  mode  of  enforcing  its 
decrees  in  personam,  if  it  had  been  intrinsically  impossible 
to  render  these  decrees  operative  in  rem,  then  the  argument 
would  have  had  some  weight;  but  in  fact  there  is  no  such 
connection,  no  such  impossibility;  the  decrees  of  a  court  of 
equity  may  be  made  to  operate  in  rem  to  the  same  extent 
and  in  the  same  manner  as  judgments  at  law.  Furthermore, 
whatever  of  plausibility  there  might  be  in  the  theory  as 
applied  to  the  English  court  of  chancery  has  been  entirely 
destroyed  by  the  legislation  of  this  country.  The  statutes 
of  the  several  states  have  virtually  abolished  the  ancient 
doctrine  that  the  decrees  in  equity  can  only  act  upon  the 
person  of  a  party,  and  have  generally  provided  that  in  all 
cases  where  the  ends  of  justice  require  such  an  effect,  and 
where  it  is  possible,  a  decree  shall  either  operate  ex 
propria  vigore  to  create,  transfer,  or  vest  the  intended 
right,  title,  estate,  or  interest,  or  else  that  the  acts  required 
to  be  done  in  order  to  accomplish  the  object  of  the  decree 
shall  be  performed  by  an  officer  of  the  court  acting  for  and 
in  the  name  of  the  party  against  whom  the  adjudication 
is  made.  In  the  vast  variety  of  equitable  remedies,  there 
are,  of  course,  some  which  directly  affect  the  person  of  the 
defendant,  and  require  some  personal  act  or  omission  on 
his  part,  and  these  are  still  enforced,  and  can  only  be  enr 


155  FUNDAMENTAL,   PRINCIPLES   AND    DIVISIONS.  §    136 

forced,  in  personam.  In  regard  to  all  other  classes,  the 
statutes  of  our  states  have,  as  a  general  rule,  either  made 
them  operative  per  se  as  a  source  of  title,  or  as  conferring 
an  estate  or  right,  or  have  given  the  requisite  power  to  cer- 
tain officers  to  carry  them  into  effect.*  This  modern  legisla- 
tion has  not,  however,  deprived  a  court  of  equity  of  its 
power  to  act  in  personam  in  cases  where  such  an  effect  is 
necessary  to  maintain  its  settled  jurisdiction;  as,  for  ex- 
ample, where  the  parties  being  within  its  jurisdiction,  the 
subject-matter  of  the  controversy,  whether  real  or  per- 
sonal property,  is  situated  within  the  territory  of  another 
state  or  nation.^' 

§  136.  Divisions. —  Adopting,  therefore,  the  primary 
rights,  estates,  and  interests  which  equity  creates,  and 
the  remedies  which  it  confers,  as  the  objects  which  define 
and  limit  the  extent  of  the  equity  jurisdiction,  I  shall  state 
the  principles  by  which  the  extent  and  limits  of  that  juris- 
diction are  ascertained.    It  has  been  customary  among 

1  For  example,  wherever  a  decree  orders  a  conveyance  to  be  made  by 
the  defendant,  the  statutes  of  many  states  provide  that  the  deed  may  be 
executed  by  a  commissioner  or  other  officer  of  the  court,  with  the  same  effect 
■ms  though  done  by  the  defendant  himself;  others  declare  that  decrees  may 
vest  a  title  in  the  party  in  whose  favor  they  are  rendered.  All  decrees 
which  require  the  sale  of  property  real  or  personal,  or  the  distribution  of 
moneys,  are  executed  by  an  officer  of  the  court,  and  his  deed  upon  the  sale 
conveys  all  the  estate  and  title  of  the  defendant.  Preventive  decrees,  like 
ordinary  injunctions,  and  some  kinds  of  restorative  decrees,  as  mandatory 
injunctions,  must  still  operate  in  personam,  and  be  enforced  by  attachment 
process  against  the  defendant,  with  fine  and  imprisonment  in  case  of  dis- 
obedience. 

2  See  Topp  v.  White,  12  Heisk.  165;  Moore  v.  Jaeger,  2  McAr.  465; 
Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444,  2  Lead.  Cas.  Eq.,  and  notes  thereto; 
Caldwell  v.  Carrington,  9  Pet.  86;  Watkins  v.  Holman,  16  Pet.  25;  Mead 
V.  Merritt,  2  Paige,  402;  Hawley  v.  James,  7  Paige,  213,  32  Am.  Dec.  623; 
Sutphen  v.  Fowler,  9  Paige,  280;  Newton  v.  Bronson,  13  N.  Y.  587,  67  Am. 
Dec.  89;  Bailey  v.  Ryder,  10  N.  Y.  363;  Gardner  v.  Ogden,  22  N.  Y.  332-339, 
78  Am.  Dec.  192;  Pingree  v.  Coffin,  12  Gray,  304;  Davis  v.  Parker,  14  Allen, 
94;  Brown  v.  Desmond,  100  Mass.  267. 

(a)  The  text  is  cited  in  Bethell  v.  Bethell,  92  Ind.  318  (suit  to  reform 
a  deed). 


§  137  EQUITY   JURISPRUDENCE.  156 

■writers  to  distinguish  the  equitable  jurisdiction  as  exclusive 
and  concurrent,  and  some  have  added  the  third  subdivision^ 
auxiliary.  T  have  already  given  reasons  which  appear  tO' 
be  sufficient  for  not  following  this  method  of  division  in 
treating  of  the  matters  which  constitute  the  body  of  equity 
jurisprudence;  but  I  shall  adopt  it  as  the  most  convenient 
in  discussing  the  jurisdiction.  This  distinction  or  opposi- 
tion between  the  *'  exclusive  "  and  the  '*  concurrent  "  re- 
lates wholly  to  the  nature  and  form  of  the  remedies  which 
are  administered  by  equity  courts,  and  properly  belongs, 
therefore,  to  that  part  of  the  jurisdiction  alone  which  is 
based  upon  these  remedies.  As  has  already  been  stated, 
the  equity  jurisdiction  embraces  both  cases  for  the  mainte- 
nance or  protection  of  primary  rights,  estates,  and  interests 
purely  equitable,  and  cases  for  the  maintenance  or  protec- 
tion of  primary  rights,  estates,  and  interests  purely  legal; 
and  in  the  latter  class  of  cases  the  remedies  granted  may 
be  of  a  kind  which  are  peculiar  to  equity  courts,  such  as 
reformation,  cancellation,  injunction,  and  others,  or  may 
be  of  a  kind  which  are  administered  by  courts  of  law,  as 
the  recovery  of  money,  or  of  the  possession  of  specific 
things.  It  is  evident  that  the  distinction  between  the  ex- 
clusive and  the  concurrent  jurisdiction  represents  the  fact 
that  the  two  kinds  of  remedies,  equitable  and  legal,  may, 
under  proper  circumstances,  be  obtained  in  the  last-men- 
tioned class  of  cases ;  no  such  division  could  have  existed  if 
the  equity  jurisdiction  had  been  confined  to  the  first  class. 

§  137.  Exclusive  Jurisdiction. —  With  these  preliminary 
explanations  we  are  prepared  for  a  description,  in  general 
terms,  of  the  various  kinds  and  classes  of  cases  which  come 
within  the  equitable  jurisdiction  of  courts.  The  exclusive 
jurisdiction  extends  to  and  embraces,  first,  all  civil  cases  in 
which  the  primary  right  violated  or  to  be  declared,  main- 
tained, or  enforced  —  whether  such  right  be  an  estate,  title, 
or  interest  in  property,  or  a  lien  on  property,  or  a  thing  in 
action  arising  out  of  contract  —  is  purely  equitable,  «and 
not  legal,  a  right,  estate,  title,  or  interest  created  by  equity, 


157  FUNDAMENTAL   PRINCIPLES    AND    DIVISIONS.  §  137 

and  not  by  law.^  All  cases  of  this  kind  fall  under  the 
equitable  jurisdiction  alone,  because  of  the  nature  of  the 
primary  or  substantive  right  to  be  redressed,  maintained, 
or  enforced,  and  not  because  of  the  nature  of  the  remedies 
to  be  granted;  although  in  most  of  such  instances  the 
remedy  is  also  equitable.  It  is  a  proposition  of  universal 
application  that  courts  of  law  never  take  cognizance  of 
cases  in  which  the  primary  right,  estate,  or  interest  to  be 
maintained,  or  the  violation  of  which  is  sought  to  be  re- 
dressed, is  purely  equitable,  unless  such  power  has  been  ex- 
pressly conferred  by  statute ;  and  if  the  statutes  have  inter- 
fered and  made  the  right  or  the  violation  of  it  cognizable 
by  courts  of  law,  such  right  thereby  becomes  to  that  extent 
legal.^  One  example  will  sufficiently  illustrate  this  propo- 
sition. At  the  common  law  (in  its  earliest  stages),  an 
assignment  of  a  thing  in  action  conveyed  no  right  or  interest 
whatever  to  the  assignee  which  would  be  recognized  to  any 
extent  or  for  any  purpose  by  a  court  of  law.  In  process  of 
time,  however,  an  interest  in  the  assignee  came  to  be  ac- 
knowledged, and  to  be  in  some  measure  protected;  but  he 
was  never  regarded  as  obtaining  a  full  legal  right  or  title, 
so  that  he  could  maintain  an  action  in  his  own  name  as 
assignee  of  the  thing  in  action.^     Equity,  howeverj  treated 

1  See  1  Spence's  Eq.  Jur.,  pp.  430-434. 

2  For  example,  by  a  peculiar  rule  in  Georgia,  a  person  who  has  a  high 
€quitable  estate  in  land,  called  a  "  complete  equity,"  may  maintain  the 
legal  action  of  ejectment  on  it  to  recover  possession  of  the  land:  Goodson 
V.  Beacham,  24  Ga.  153;  Jordan  v.  Faircloth,  27  Ga.  372,  376.  A  vendee 
in  a  contract  for  the  sale  of  land  who  had  paid  the  agreed  price,  and  was 
entitled  to  a  deed  and  to  the  possession,  and  who  simply  needed  the  legal 
title  to  complete  his  ownership,  would  have  the  "  complete  equity  "  intended 
by  this  rule.  In  my  own  opinion,  the  same  result  should  follow  in  all  the 
states  which  have  adopted  the  reformed  procedure  abolishing  all  distinctions 
between  legal  and  equitable  actions;  but  the  decisions  are  nearly  all  op- 
posed to  this  view.  See  the  question  stated  and  discussed  in  Pomeroy  on 
Remedies  and  Remedial  Rights,  §§  98-103. 

8  2  Black.  Com.  442;  1  Spence's  Eq.  Jur.,  p.  181;  Lampet's  Case,  10  Coke, 
47,  48;  Winch  v.  Keeley,  1  Term  Rep.  619;  Master  v.  Miller,  4  Term  Rep. 
340;  Westoby  v.  Day,  2  El.  &  B.  605,  624;  Raymond  v.  Squire,  11  Johns.  47; 
Briggs  T.  Dorr,  19  Johns.  95;  Conover  y.  Cutting,  50  N.  H.  47. 


§  ]  38  EQUITY   JURISPRUDENCE.  158 

the  assignee  as  succeeding  to  all  tlie  right  and  title  of  the 
assignor,  as  possessing  a  full  interest  in,  or,  so  to  speak, 
ownership  of,  the  thing  in  action  transferred,  and  there- 
fore permitted  him  to  maintain  the  proper  suit  in  his  own 
name.  It  is  an  entirely  mistaken  view  to  say  that  equity 
only  gave  a  remedy  in  this  case,  for  there  could  be  no 
remedy  without  an  antecedent  right.  The  assignee  ac- 
quired a  substantive  right,  an  absolute  interest ;  but  it  was 
equitable,  and  could  therefore  only  be  enforced  by  a  suit 
in  equity ;  while  a  court  of  law  would  only  permit  an  action 
to  be  prosecuted  in  the  name  of  the  assignor,  in  whom  it 
said  the  title  was  still  vested.*  The  statutes  of  many 
states  have  abolished  this  common-law  rule,  and  enabled 
the  assignee  to  sue  in  his  own  name  in  a  court  of  law.  The 
necessary  effect  of  this  legislation  is  to  change  the  right 
acquired  by  the  assignee  of  a  thing  in  action,  from  being- 
purely  equitable,  into  a  legal  title,  interest,  or  ownership.^" 
§  138.  The  exclusive  jurisdiction  includes,  secondly,  all 
civil  cases  in  which  the  remedy  to  be  granted  —  and,  of 
course,  the  remedial  right  —  is  purely  equitable,  or  one 
which  is  recognized  and  administered  by  courts  of  equity, 
and  not  by  courts  of  law.  In  the  cases  of  this  class,  the 
primary  right  which  is  maintained,  redressed,  or  enforced 
is  sometimes  equitable  and  is  sometimes  legal ;  but  the  juris- 

*1  Spenee's  Eq.  Jur.,  p.  643;  Row  v.  Dawson,  1  Yes.  Sen.  331,  2  Lead. 
Eq.  1531,  1559,  and  notes  thereto. 

6  See,  as  to  these  state  statutes  and  their  eflFect,  Pomeroy  on  Remedies 
and  Remedial  Rights,  chap.  2,  sec.  2,  §§  124-138;  Petersen  v.  Chemical  Bank, 
32  N.  Y.  21,  35,  88  Am.  Dec.  298,  per  Denio,  J.:  "The  law  of  maintenance 
prohibited  the  transfer  of  the  legal  property  in  a  chose  in  action,  so  as  to 
give  the  assignee  a  right  of  action  in  his  own  name.  But  this  is  now 
abrogated,  and  such  a  demand  as  that  asserted  against  the  defendant  in  this 
suit  [an  ordinary  debt]  may  be  sold  and  conveyed,  so  as  to  vest  in  the 
purchaser  all  the  legal  as  well  as  the  equitable  rights  of  the  original  cred- 
itor." See  also  Cummings  v.  Morris,  25  N.  Y.  625,  627,  per  Allen,  J.  Some 
dicta  of  judges  to  the  contrary,  to  be  found  in  a  few  cases,  must  be  regarded 
as  mistaken;  as,  for  example,  McDonald  v.  Kneeland,  5  Minn.  352,  365, 
per  Atwater,  J. 

(a)  This  p.'irnpraph  of  the  text  ia  cited  in  Deering  v.  Schreyer,  171  N.  Y. 
461,  64  N.  E.  179. 


159  FUNDAMENTAL   PKINCTPLFS    AND    DIVTSIONS.  §  13S 

diction  depends,  not  upon  the  nature  of  these  rights,  estates^ 
or  interests,  but  wholly  upon  the  nature  of  the  remedies.' 
Cases  in  which  the  remedy  sought  and  obtained  is  one  which 
equity  courts  alone  are  able  to  confer  must,  upon  any  con- 
sistent system  of  classification,  belong  to  the  exclusive 
jurisdiction  of  equity,  even  though  the  primary  right, 
estate,  or  interest  of  the  party  is  one  which  courts  of  law 
recognize,  and  for  the  violation  of  which  they  give  some 
remedy.  Thus  a  suit  to  compel  the  specific  performance 
of  a  contract  falls  under  the  exclusive  jurisdiction  of  equity, 
although  a  legal  right  also  arises  from  the  contract,  and 
courts  of  law  will  give  the  remedy  of  damages  for  its  viola- 
tion. The  remedies  peculiar  to  equity  are  not  confined  to 
cases  in  which  the  primary  right  of  the  complaining  party, 
whatever  be  its  kind,  is  equitable ;  they  are  given  in  numer- 
ous classes  of  instances  where  such  right,  estate,  or  interest 
is  wholly  legal.  Thus  a  legal  estate  in  land  may  be  pro- 
tected by  the  exclusively  equitable  remedy  of  injunction 
against  nuisances  or  continued  trespasses;  or  the  legal 
estate  may  be  established  against  adverse  claimants  by  a 
suit  to  quiet  title,  or  by  the  remedy  of  cancellation  to  remove 
a  cloud  from  title.  Again,  the  particular  fact  or  event 
which  occasions  the  peculiar  equitable  remedy,  and  gives 
rise  to  the  right  to  such  remedy,  may  also  be  the  occasion 
of  a  legal  remedy  and  a  legal  remedial  right  simultaneous 
with  the  equitable  one.  This  is  especially  true  with  ref- 
erence to  fraud,  mistake,  and  accident.  Fraud,  for  ex- 
ample, may  at  the  same  time  be  the  occasion  of  the  legal 
remedy  of  damages  and  of  the  equitable  relief  of  cancella- 
tion. These  two  classes  of  cases  cannot,  however,  be  re- 
garded or  treated  as  belonging  to  the  concurrent  jurisdic- 
tion ;  such  a  mode  of  classification  could  only  be  productive 
of  confusion.  The  criterion  which  I  have  given  is  always 
simple  and  certain  in  referring  to  the  exclusive  jurisdiction 

(a)  The  text  is  quoted  in  Montana       536,  70  Pac.   1114,  71  Pac.   1005,  an 
Ore  Purchasing  Co.  v.   Boston   &  M.       action  to  quiet  title. 
Consol.   C.  &   S.   Min.   Co.,   27   Mont. 


§  139  EQUITY   JURISPRUDENCE.  IGO 

all  cases  in  which  the  remedy  is  given  by  courts  of  equity 
alone,  without  regard  to  the  nature  of  the  substantive  right 
which  forms  the  basis  of  the  action,  or  to  the  fact  or  event 
which  is  the  occasion  of  the  required  relief.  In  this  manner 
only  is  the  notion  of  jurisdiction  preserved  distinct  from 
all  questions  as  to  the  propriety  of  exercising  that  jurisdic- 
tion and  of  granting  relief  by  equity  courts  in  particular 
cases.  It  is  proper  to  remark  here  that  the  statutory  legis- 
lation of  many  states  has  increased  the  number  of  cases  in 
which  purely  equitable  remedies  are  granted  for  the  pur- 
pose of  maintaining,  enforcing,  or  defending  primary 
rights,  estates,  and  interests  which  are  legal  in  their  nature, 
and  has  thus  enlarged  this  department  of  the  original  ex- 
clusive jurisdiction  of  equity.  As  examples  merely,  I  men- 
tion the  statutory  suit  to  quiet  title  and  determine  the  legal 
estate  by  the  holder  of  the  fee  in  possession  or  not  in  posses- 
sion, against  an  adverse  claimant  or  claimants  relying  per- 
haps upon  another  legal  title:  ^  the  suit  by  heirs  to  set  aside 
an  alleged  will  of  lands ;  the  ordinary  equitable  suit  in  many 
states  to  enforce  a  mechanic's  lien  and  other  similar  liens; 
and  the  suits  given  by  statute  in  most  states  to  dissolve 
corporations  or  to  remove  their  officers,  and  the  like. 

§  139.  Concurrent  Jurisdiction. —  The  concurrent  jurisdic- 
tion embraces  all  those  civil  cases  in  which  the  primary 
right,  estate,  or  interest  of  the  complaining  party  sought 
to  be  maintained,  enforced,  or  redressed  is  one  which  is 
cognizable  by  the  law,  and  in  which  the  remedy  conferred 
is  of  the  same  kind  as  that  administered,  under  the  like  cir- 
cumstances, by  the  courts  of  law, — ^^  being  ordinarily  a  re- 
covery of  money  in  some  form.^  The  primary  right,  the 
estate,  title,  or  interest,  which  is  the  foundation  of  the  suit, 

1  See  1   Spcnce's  Eq.  Jur.,  pp.  430-434. 

(b)  The  text  ia  quoted  and  cited  in  in    such    suits   as   dependent   on    the 

Montana  Ore  Purch.  Co.  v.  Boston  &  plaintifT'.s    pos.session.      See,    on    this 

M.    ConHol.    C.    <t    S.    Min.    Co.,    27  subject,    post,    §    292,   editor's    note; 

Mont  536,  70  Pac.  1114,  71  Pac.  1005,  and    Poineroy's    Equitable    Remedies, 

diRcuBoing  the  equitable  jurisdiction  chapter  "  Quieting  Title." 


161  FUNDAMENTAL   PRINCIPLES   AND   DIVISIONS.  §  139 

must  be  legal,  or  else  the  case  would  belong  to  the  exclusive 
jurisdiction  of  equity ;  and  the  law  must,  through  its  judicial 
procedure,  give  some  remedy  of  the  same  general  nature 
as  that  given  by  equity,  but  this  legal  remedy  is  not,  under 
the  circumstances,  full,  adequate,  and  complete.  The  fact 
that  the  legal  remedy  is  not  full,  adequate,  and  complete  is, 
therefore,  the  real  foundation  of  this  concurrent  branch  of 
the  equity  jurisdiction.^ "  This  principle  is  well  illustrated 
by  the  case  of  contribution  among  sureties.  The  surety 
entitled  to  reimbursement  may  maintain  an  action  at  law, 
and  recover  a  pecuniary  judgment  against  each  of  the  per- 
sons liable  to  contribution,  but  this  legal  relief  is  subject 

2  There  is  a  distinction  here  of  great  importance,  but  which  has  often  been 
overlooked.  The  want  of  a  full,  adequate,  and  complete  remedy  at  law, 
under  the  circumstances  of  the  particular  case,  is  also  the  reason  why 
the  jurisdiction  of  equity  is  actually  exercised,  and  a  decision  is  made  in 
favor  of  the  plaintiff  granting  him  equitable  relief,  in  some  instances  of  the 
exclusive  jurisdiction;  as,  for  example,  in  suits  for  the  specific  performance 
of  contracts.  But  such  fact  is  not  in  these  instances  the  foundation  of  the 
jurisdiction;  it  is  only  the  occasion  on  which  a  decision  is  rightfully  made  in 
pursuance  of  the  doctrines  of  equity  jurisprudence  by  courts  already  pos- 
sessing the  jurisdiction.  The  jurisdiction  exists  because  courts  of  equity 
alone  are  competent  to  administer  these  remedies.  In  all  instances  of  con- 
current jurisdiction,  both  the  courts  of  law  and  those  of  equity  are  com- 
petent to  administer  the  same  remedy,  and  the  foundation  of  the  jurisdiction 
in  equity  is  the  inadequacy  of  the  relief  as  it  is  administered  through  means 
of  the  legal  procedure.  The  exclusive  jurisdiction  of  equity  rests  upon  an 
entirely  diflFerent  foundation,  and  exists  absolutely  without  reference  to  the 
adequacy  of  legal  reliefs.  This  distinction  is  a  plain  one,  but  is  often  lost 
sight  of;  the  two  classes  of  cases  are  often  confounded,  and  the  equitable 
jurisdiction,  in  all  instances  exclusive  and  concurrent,  is  made  to  rest  merely 
upon  the  inadequacy  of  legal  remedies.  This  error  grows  out  of  the  tend- 
ancy  to  confoimd  questions  as  to  the  equitable  jurisdiction;  i.  e.,  the  power 
of  equity  courts  to  hear  and  decide,  with  the  altogether  different  questions 
as  to  the  rightfulness  of  their  decision;  i.  e.,  whether,  according  to  the 
doctrines  of  equity,  a  case  unquestionably  within  their  jurisdiction  was 
properly  decided, 

(a)  The  text  is  cited  in  Hender-  enforce  contribution  among  stock- 
son  V.  Johns,  13  Colo.  280,  22  Pac.  holders  is  at  law)  ;  Buck  v.  Ward,  97 
461  (suit  to  compel  surrender  of  Va.  209,  33  S.  E.  513  (suit  to  re- 
notes)  ;  and  quoted  in  Myers  v.  cover  money  expended  by  reason  of 
Sierra  Valley  Stock  &  Agric.  Assn.,  defendant's  fraud). 
.122  Cal.  669,  55  Pac.  689  (remedy  to 

Vol.  I --11 


§  140  EQUITY   JURISPEUDENCE.  162 

to  SO  many  limitations  that  it  may  often  fail  to  restore  the 
plaintiff  to  his  rightful  position.  The  equity  suit  for  a  con- 
tribution gives  exactly  the  same  final  remedy, —  a  recovery 
of  money ;  but  on  account  of  the  greater  freedom  and  adapt- 
ability to  circumstances  incident  to  the  equitable  procedure^ 
it  enables  the  plaintiff  in  one  proceeding  to  obtain  such 
complete  reimbursement  as  relieves  him  effectually  from 
all  the  burden  which  does  not  properly  rest  upon  him,  and 
produces  a  just  equality  of  recompense  as  well  as  of  loss 
among  all  the  parties.,^  The  incidents  and  features  of 
legal  remedies  which  render  them  inadequate  are  various  in 
their  kind  and  extent,  and  will  be  described  in  a  subsequent 
section.  One  of  the  most  common  and  important  of  these 
features  which  is  frequently  the  ground  for  the  equitable 
jurisdiction  is  the  necessity  of  obtaining  whatever  remedies 
the  law  furnishes,  by  means  of  several  separate  actions, 
either  simultaneous  against  different  persons,  or  successive 
against  the  same  person;  while  in  equity  the  plaintiff  may 
obtain  full  relief  by  one  suit  brought  against  all  the  parties 
liable  or  interested.  This  power,  which  the  equity  courts 
possess,  of  deciding  the  whole  matter  in  one  judicial  pro- 
ceeding, and  of  thus  avoiding  a  repetition  or  circuity  of 
legal  actions,  is  a  fruitful  source  of  the  concurrent  equitable 
jurisdiction.^  ^ 

§  140.  The  cases  included  within  the  concurrent  juris- 
diction may,  for  purposes  of  convenience  and  clearness  in 
their  discussion,  be  arranged  under  two  general  classes. 
The  first  contains  all  those  cases,  belonging  to  the  concur- 
rent jurisdiction,  in  which  the  primary  right  violated,  the 
estate,  title,  or  interest  to  be  protected,  is,  of  course,  legal, 

8  Bering  v.  Earl  of  Winchelsea,  1  Cox,  218,  1  Lead.  Ca3.  Eq.  120,  and  notes. 

*New  York,  He,  R.  R.  v.  Schuyler,  17  N.  Y.  592;  McHenry  v.  Hazard,  4& 
N.  Y.  580;  Third  Ave.  R.  R.  v.  Mayor,  etc.,  54  N.  Y.  159;  Eldridge  v.  Hill,  2 
Johns.  Ch.  281;  West  v.  Mayor,  etc.,  10  Paige,  539;  Oelrichs  v.  Spain,  15 
Wall.  211,  228;  Woods  v.  Monroe,  17  Mich.  238;  Earl  of  Oxford's  Case,  2 
Lead.  Gas.  Eq.  1337,  note. 

(b)  The  text  lb  cited  in  McMullin's  Admr.  r.  Sandars,  79  Va.  356.  See 
poat,  a  243-275. 


163  FUNDAMENTAL  PKINCIPLES  AND  DIVISIONS.  §  141 

and  the  subject-matter  of  the  suit,  and  the  act,  event,  or 
fact  which  occasions  the  right  to  a  remedy,  may  be  brought 
within  the  cognizance  of  the  law  courts,  and  made  the  foun- 
dation of  a  legal  action,  but  in  respect  of  which  the  whole 
system  of  legal  remedies  is  so  partial  and  insufficient  that 
complete  justice  can  only  be  done  by  means  of  the  equity 
jurisdiction.  The  most  important  acts,  events,  and  facts 
which  thus  require  or  permit  the  interposition  of  equity  in 
the  cases  forming  this  branch  of  the  concurrent  jurisdiction 
are  fraud,  mistake,  and  accident.^  "^  The  second  class  con- 
tains all  the  remaining  cases  in  which  the  primary  right  ta 
be  redressed  or  protected  is  legal,  and  the  relief  is  of  the 
same  kind  as  that  given  by  the  law,  but  in  which,  from  the 
special  circimistances  of  the  case  itself,  or  from  the  inherent 
defects  of  the  legal  procedure,  the  remedy  at  law  is  inade- 
quate, and  equity  takes  jurisdiction,  in  order  to  do  complete 
justice.  Among  the  familiar  examples  of  this  class  are 
suits  for  an  accounting,**  for  contribution,  for  exoneration, 
in  all  of  which  the  remedy,  both  at  law  and  in  equity,  is  a 
recovery  of  money ;  suits  for  partition  of  land,**  admeasure- 
ment of  dower,  and  settlement  of  boundaries,  in  all  of  which 
the  final  relief,  both  at  law  and  in  equity,  is  the  obtaining 
possession  of  specific  tracts  of  land ;  and  suits  which  result 
in  an  award  of  damages. 

§  141.  It  should  be  remarked,  however,  that  the  fore- 
going divisions  of  the  jurisdiction  cannot  always  be  strictly 
observed  in  the  actual  practice,  since  one  suit  may  often 

1  All  cases  of  equitable  cognizance  arising  from  fraud,  accident,  or  mis- 
take do  not  belong  to  the  concurrent  jurisdiction  merely  because  the  law 
has  jurisdiction  of  cases  arising  from  the  same  facts.  Suits  occasioned  by 
fraud,  in  which  the  remedy  granted  is  cancellation,  and  those  occasioned  by 
mistake,  in  which  the  remedy  is  a  reformation,  and  the  like,  fall  within  the 
exclusive  jurisdiction.  The  concurrent  jurisdiction,  however,  embraces  a  large 
variety  of  cases  in  which  the  cause  of  action  springs  from,  or  is  occasioned  by, 
fraud  or  mistake. 

(a)  This  paragraph  of  the  text  is  cited  in  Russell  v.  McCall,  141  N.  Y. 
cited    in    Stockton    v.    Anders<m,    40       437,  38  Am.  St.  Rep.  807. 

N.  J.  Eq.  486,  4  Atl.  642.  (c)    This  paragraph  of  the  text  is 

(b)  This  paragraph  of  the  text  is       cited  in  Daniels  t.  Benedict,  50  Fed. 

347. 


§§  142,    143  EQUITY   JURISPRUDENCE.  164 

include  different  kinds  of  the  same  jurisdiction,  and  may 
even  embrace  both  the  exclusive  and  the  concurrent  juris- 
dictions. For  example,  both  the  equitable  estate  of  the 
cestui  que  trust  and  the  legal  estate  of  the  trustee  may  be 
protected  by  means  of  one  action  based  upon  the  exclusive 
jurisdiction,  and  many  remedies  belonging  to  the  exclusive 
jurisdiction  are  combined  in  the  same  suit  with  a  pecuniary 
recovery.  The  explanation  is  to  be  found  in  the  general 
principle  of  the  equity  procedure,  which  requires  all  the 
parties  interested  in  the  subject  of  an  action  to  be  brought 
before  the  court,  and  the  whole  controversy  to  be  settled 
by  one  adjudication. 

§  142.  Auxiliary  Jurisdiction. —  The  auxiliary  jurisdic- 
tion, in  its  original  and  true  scope  and  meaning,  is  in  fact 
a  special  case  of  the  ''  exclusive,"  since  its  methods  and 
objects  are  confined  to  the  equity  procedure.  In  all  suits 
which  belong  to  this  jurisdiction  in  its  original  and  proper 
sense,  no  remedy  is  either  asked  or  granted;  their  sole  ob- 
ject is  the  obtaining  or  preserving  of  evidence  to  be  used 
upon  the  trial  of  some  action  at  law.  The  cases  embraced 
within  this  proper  auxiliary  jurisdiction  are  suits  for  dis- 
<Jovery,  to  obtain  an  answer  under  oath  from  a  party  to  a 
pending  or  anticipated  action  at  law,  which  answer  may  be 
used  as  evidence  on  the  trial  of  such  action;  suits  for  the 
perpetuation  of  evidence;  and  suits  for  the  obtaining  of 
evidence  in  a  foreign  country.  The  latter  two  species  of 
suits  are  practically  obsolete  in  this  country,  having  been 
superseded  by  more  summary  and  efficient  proceedings 
authorized  by  statutes.* 

§  143.  Although  the  auxiliary  jurisdiction  for  a  discov- 
ery was  originally  exercised  for  the  sole  purpose  above 
mentioned,  to  obtain  evidence  from  a  party  litigant  to  be 
offered  on  the  trial  of  a  legal  action,  so  that  as  soon  as  its 
purpose  was  accomplished  by  the  filing  of  a  proper  answer 
the  suit  itself  was  ended,  and  no  decree  was  possible,  yet 

(a)  This  paragraph  of  the  text  is  91,  65  N.  W.  135;  Chapman  v.  Lee, 
cited  in  Turnbull  v.  Crick,  63  Minn.       45  Ohio  St.  356,  13  N.  E.  736. 


165  FUNDAMENTAL.  PRINCIPLES  AND  DIVISIONS.  §  144 

in  some  of  the  American  states  such  a  discovery  in  relation 
to  matters  in  controversy  purely  legal  has  been  made  the 
ground  of  enlarging  the  concurrent  jurisdiction  of  equity, 
by  extending  it  to  the  very  issues  themselves  in  respect  of 
which  the  discovery  is  obtained.  In  other  words,  where  the 
court  of  equity  has  exercised  its  auxiliary  jurisdiction  to 
obtain  discovery  concerning  any  matter  in  controversy^ 
even  though  purely  legal,  it  thereby  acquires  complete  juris- 
diction over  the  controversy  itself,  and  may  go  on  and 
decide  the  issues  and  grant  the  proper  relief,  although  the 
case  is  one  cognizable  at  law,  and  the  legal  remedy  is  fully 
adequate.  Mere  discovery  is  thus  made  the  foundation  of 
a  concurrent  jurisdiction  over  cases  which  are  purely  legale 
both  in  the  primary  rights  involved  and  in  the  remedy^ 
without  any  regard  to  the  adequacy  or  inadequacy  of  this 
legal  remedy.  This  doctrine  prevails,  or  has  prevailed,  in 
certain  of  the  states,  but  it  is  clearly  opposed  to  the  true 
theory  of  the  equitable  jurisdiction.^  It  should  be  re- 
marked that  in  many  of  the  states  the  whole  auxiliary  juris- 
diction for  discovery  has  become  useless  and  obsoletCy 
through  great  changes  made  in  the  general  law  of  evidence,, 
or  has  been  expressly  abolished  by  statute.^ 

§  144.  The  suit  for  a  **  discovery  "  belonging  to  the 
auxiliary  jurisdiction,  as  described  in  the  foregoing  para- 
graphs, should  be  carefully  distinguished  from  the  so-called 
**  discovery  "  which  may  be,  and  ordinarily  is,  an  incident 
of  every  equitable  action.  It  is  a  part  of  the  ordinary 
equity  procedure,  that  whatever  be  the  relief  sought,  and 
whether  the  jurisdiction  be  exclusive  or  concurrent,  the 
plaintiff  may,  by  means  of  allegations  and  interrogatories 
contained  in  his  pleading,  compel  the  defendant  to  disclose 
by  his  answer  facts  within  his  own  personal  knowledge 
which  may  operate  as  evidence  to  sustain  the  plaintiff's 
contention.  The  name  "  discovery  "  is  also  given  to  this 
process  of  probing  the  defendant's  conscience,  and  of  ob- 

iSee  post,  chap,  ii,  §§  250  et  Beq. 
3  See  post,  section  iv. 


§  145  EQUITY   JURISPRTJDENCE.  166 

taining  admissions  from  him,  which,  accompanies  almost 
•every  suit  in  equity;  but  it  should  not  be  confounded  with 
^*  discovery  "  in  its  original  and  strict  signification,  nor 
mth  that  mentioned  in  the  last  preceding  paragraph,  which 
is  sometimes  made  the  ground  for  extending  the  concurrent 
jurisdiction  of  equity  over  cases  otherwise  belonging  to  the 
domain  of  the  common-law  courts. 

§  145.  The  foregoing  summary  may  be  appropriately 
<;onc]uded  by  a  statement  of  the  order  to  be  pursued  in  the 
further  discussion  of  the  equitable  jurisdiction  thus  briefly 
outlined.  The  whole  subject  will  be  distributed  into  three 
chapters,  which  will  respectively  treat  of, —  Chapter  I., 
doctrines  concerning  the  jurisdiction  generally,  its  extent 
when  unaffected  by  statutory  limitations ;  Chapter  II.,  gen- 
eral rules  for  the  government  of  this  jurisdiction ;  Chapter 
m.,  particular  jurisdiction  of  the  courts  in  the  various 
states,  and  of  the  United  States  courts.  The  three  remain- 
ing sections  of  the  present  chapter  are  devoted  in  order  to 
a  more  detailed  description  of  the  exclusive,  the  concurrent, 
and  the  auxiliary  jurisdictions. 


SECTION  n. 

THE  EXCLUSIVE  JUKISDICTION. 

ANALYSIS. 

f  146.  Equitable  primary  rights  and  "  equities  "  defined. 
fi   147-149.  Equitable  estates  described. 

8  150.  Certain   distinctive  equitable  doctrines  forming  part  of  equity 
jurisprudence. 
ii   151-155.  Trusts  described. 

§   156.  Executors  and  administrators. 
J§   157,  158.  Fiduciary  relations. 
88   159,  IGO.  Married  women's  separate  property. 

8   161.  Estates  arising  from  equitable  conversion. 
88   162,  163.  Mortgages  of  land. 

8  164.  Mortgages  of  personal  property. 
88   165-167.  Equitable  liens. 
88   168,  169.  Estates  arising  from  assignment  of  things  in  action,  possibilitiei, 

etc.,  and  from  an  equitable  assignment  of  a  fund. 
vJI   170-172.  Exclusive  equitable  remedies  described. 


167  THE  EXCLUSIVE  JURISDICTION.  §§  146,    147 

§  146.  Equitable  Estates,  Interests,  and  Rights  in  Prop- 
erty.—  It  was  stated  in  the  preceding  section  that  the  exclu- 
sive jurisdiction  included,  first,  all  civil  cases  based  upon 
or  relating  to  equitable  estates,  interests,  and  rights  in 
property  as  the  subject-matter  of  the  action,  whatever  may 
be  the  nature  of  the  remedy ;  and  secondly,  all  civil  cases  in 
which  the  remedy  granted  is  purely  equitable,  that  is,  ad- 
ministered by  courts  of  equity  alone,  whatever  may  be  the 
nature  of  the  primary  right,  estate,  or  interest  involved  in 
the  action.  I  purpose  now  to  describe  these  two  classes  in 
a  general  manner.  Equitable  primary  rights,  interests,  and 
estates  may  exist  in  things  real  and  in  things  personal,  in 
lands  and  in  chattels.  They  are  also  of  various  amounts 
and  degrees,  from  the  substantial  beneficial  ownership  of 
the  subject-matter  down  to  mere  liens.  In  all  cases,  how- 
ever, they  are  rights  in,  to,  or  over  the  subject-matter, 
recognized  and  protected  by  equity,  and  are  to  be  distin- 
guished from  the  so-called  "  equities,"  a  term  which,  when 
properly  used,  denotes  simply  the  right  to  some  remedy 
administered  by  courts  of  equity.^  *  A  cestui  que  trust,  a 
mortgagee,  a  vendee  in  a  contract  for  the  sale  of  land,  is 
clothed  with  an  equitable  estate  or  interest;  while  the  mere 
right  to  have  an  instrument  reformed  or  canceled,  or  to 
have  a  security  marshaled,  and  the  like,  is  properly  ''  an 
equity. ' ' 

§  147.  Equitable  Estate  Defined. —  An  equitable  estate,  in 
its  very  conception,  and  as  a  fact,  requires  the  simultaneous 
existence  of  two  estates  or  ownerships  in  the  same  subject- 
matter,  whether  that  be  real  or  personal, —  the  one  legal, 

1  The  term  "  an  equity  "  is  thus  synonymous  with  what  I  have  denomi- 
nated an  equitable  remedial  right.  It  is,  however,  constantly  used  in  a 
broader  and  improper  sense,  as  describing  every  kind  of  right  which  equity 
jurisprudence  recognizes, —  estates  and  interests  in  land,  or  chattels,  liens, 
and  rights  to  obtain  remedies.  Such  indiscriminate  use  of  the  term  only 
tends  to  produce  confusion  of  thought. 

(a)  This  paragraph  of  the  text  is  cited  in  Mengel  t.  Lehigh  Coal  &  Nar. 
Go.,  24  Pa.  Co.  Ct.  Rep.  152. 


§  147  EQUITY   JURISPEUDENCE.  168" 

vested  in  one  person,  and  recognized  only  by  courts  of  law ; 
the  second  equitable,  vested  in  another  person,  and  recog- 
nized only  by  courts  of  equity.  These  two  interests  must 
be  separate,  and  as  a  rule,  must  be  held  by  different  per- 
sons; for  if  the  legal  estate  and  the  equitable  estate  both 
become  vested  in  the  same  person  by  the  same  right,  then, 
as  a  general  rule,  a  merger  takes  place,  and  the  legal  estate 
alone  remains.^  There  are  indeed  exceptions  to  this  gen- 
eral doctrine;  for  under  certain  circumstances,  as  will  ap- 
pear hereafter,  equity  prevents  such  a  merger,  and  keeps 
alive  and  distinct  the  two  interests,  although  they  have  met 
in  the  same  owner.^  In  all  cases  of  equitable  estates,  as- 
distinguished  from  lesser  interests,  whether  in  fee,  for  life^ 
or  for  years,  they  are  in  equity  what  legal  estates  are  in 
law;  the  ownership  of  the  equitable  estate  is  regarded  by 
equity  as  the  real  ownership,  and  the  legal  estate  is,  as  has 
been  said,  no  more  than  the  shadow  always  following  the 
equitable  estate,  which  is  the  substance,  except  where  there 
is  a  purchaser  for  value  and  without  notice  who  has  ac- 
quired the  legal  estate.^  *  This  principle  of  a  double  rights 
one  legal  and  the  other  equitable,  is  not  confined  to  equi- 
table estates,  properly  so  called;  it  is  the  essential  charac- 
teristic of  every  kind  of  equitable  interest  inferior  to  es- 
tates. In  the  total  ownership  resulting  from  mortgages,  or 
from  the  operation  of  the  doctrine  of  conversion,  or  from 
the  assignment  of  things  in  action,  and  other  interests  not 

1  Selby  V.  Alston,  3  Ves.  339. 

2  These  apparent  exceptions  really  confirm  the  general  rule. 

8  Attorney-Gen.  v.  Downing,  Wilm.  23;  Burgess  v.  Wheate,  1  Eden,  223; 
Mansell  v.  Mansell,  2  P.  Wms.  681;  Williams  v.  Owens,  2  Ves.  603;  Brydge» 
V.  Brydges,  3  Ves.  120.  As  to  the  descent  of  equitable  estates  as  contradistin- 
guished from  mere  equitable  rights  of  action  or  "  equities,"  see  Trash  v. 
Wowl,  4  Mylne  &  C.  324,  328;  Roberts  v.  Dixwell,  1  Atk.  609.  For  example 
of  equitable  estate  in  fee  under  the  doctrine  of  conversion  descending  to  heir. 
Bee  Martin  v.  Trimmer,  L.  R.  11  Ch.  Div.  341. 

(a)  This  paragraph  of  the  text  is  the  equitable  estate  of  the  wife  in 
quoted  in  Patty  v.  Middlcton,  82  "  community "  property  under  the 
Tex.   586,    17    S.   W.    909,   diacussing        Texas  law. 


169  THE  EXCLUSIVE  JURISDICTION.  §  14S 

assignable  at  law,  and  in  liens,  there  is  always  a  legal  title 
or  estate  vested  in  one  person,  recognized  by  courts  of  law 
alone,  and  an  equitable  interest,  ownership,  or  claim,  dis- 
tinct from  a  mere  right  of  action  or  remedial  right,  vested 
in  another  person,  which  is  recognized,  and,  according  to 
its  nature,  protected  or  enforced  by  courts  of  equity. 

§  148.  Equitable  estates  and  interests  of  all  kinds  are 
separated  by  a  broad  line  of  distinction,  with  respect  to 
their  nature  and  the  mode  in  which  equity  deals  with  them, 
into  two  classes.  The  first  class  contains  those  in  which  the 
equitable  estate  is  regarded  as  a  permanent,  subsisting 
ownership;  the  separation  between  the  legal  and  equitable 
titles  is  not  treated  as  an  anomaly,  much  less  a  wrong,  but 
as  a  fixed  and  necessary  condition  to  be  preserved  as  long 
as  the  equitable  interest  continues;  and  the  various  rules 
and  doctrines  of  equity  are  concerned  with  the  respective 
rights  and  liabilities  of  the  two  owners,  while  the  remedies 
given  to  the  equitable  owner  are  intended  to  preserve  his 
estate,  and  to  protect  it  both  against  the  legal  owner  and 
against  third  persons.  The  class  embraces  most  species  of 
express  trusts,  the  interests  created  by  mortgages  as  orig- 
inally established  by  the  court  of  chancery,  the  interests 
resulting  from  an  assignment  of  things  in  action.  These 
various  species  of  equitable  estates  and  interests  might  well 
be  described  by  applying  to  them  the  term  "  permanent.'^ 
In  the  second  class  the  separation  of  the  two  interests  is 
regarded  as  always  temporary,  and  in  many  instances  as 
actually  wrongful.  There  is  a  certain  antagonism  between 
the  equitable  and  the  legal  ownership  or  right,  and  the  very 
existence  of  the  legal  estate  is  often  in  complete  violation 
of  the  rights  of  the  equitable  owner.  The  doctrines  and 
rules  of  equity  concerning  this  class  do  not  contemplate  a 
permanent  separation  between  the  two  interests ;  the  rights 
of  the  equitable  owner  are  hostile  to  those  of  the  legal  pro- 
prietor; while  the  remedies  given  to  the  equitable  owner 
always  have  for  their  object  the  perfecting  of  his  rights 
against  the  legal  estate,  and  very  generally  consist  in  com- 


I  149  EQUITY   JURISPRUDENCE.  170 

pelling  a  complete  transfer  of  the  legal  estate,  so  that  the 
equitable  owner  shall  obtain  the  legal  title  in  addition  to 
the  equitable  interest  which  he  already  possesses.  The 
class  embraces  resulting,  implied,  and  constructive  trusts, 
the  interests  arising  from  the  operation  of  the  doctrine  of 
conversion,  and  liens,  including  the  equitable  interest  of 
mortgagees  according  to  the  doctrine  which  prevails  in 
many  of  the  states.  Equitable  estates  of  the  first  class  are 
very  numerous  in  England,  by  reason  of  the  customs  of 
landed  proprietors  and  the  frequency  of  marriage  settle- 
ments, provisions  for  families  in  wills,  the  separate  prop- 
erty of  married  women,  charitable  foundations,  and  other 
species  of  express  trusts;  and  a  very  large  part  of  equity 
as  administered  in  England  is  concerned  with  these  perma- 
nent equitable  estates.  Although  not  unknown,  they  are, 
from  our  widely  different  social  customs  and  practices  of 
land-owners,  comparatively  very  infrequent  in  this  country. 
§  149.  From  the  universality  of  this  double  ownership, 
or  separation  of  the  legal  and  equitable  titles  between  two 
proprietors  or  holders,  which  is  an  essential  feature  of 
trusts,  all  species  of  equitable  estates  and  interests  might 
possibly  be  regarded  as  particular  kinds  of  trusts,  or  as 
special  applications  of  the  general  principles  concerning 
trusts.  Thus  the  holder  of  the  legal  title  in  assignments 
of  things  in  action,  in  cases  of  conversion,  in  mortgages 
and  in  liens,  no  less  than  in  trusts  proper,  is  frequently 
spoken  of  as  the  trustee,  and  the  holder  of  the  equitable 
interest  as  the  cestui  que  trust.  It  would  be  possible, 
therefore,  to  treat  the  entire  jurisdiction  of  equity  over 
equitable  estates  and  interests,  and  these  estates  and  in- 
terests themselves,  as  based  upon  and  included  within  the 
single  subject  of  trusts.^  But  this  method,  while  resting 
upon  some  analogies  and  external  resembhmces,  would  over- 
look essential  differences  between  the  various  estates  and 

iTliis   method    has   been    pursued   partially,   if   not   wholly,   by   some   text- 
writers:     See  Willard's  Eq.  Jur. 


"171  THE   EXCLUSIVE    JURISDICTION.  §  150 

interests  created  by  equity,  and  would  therefore  be  mis- 
leading. Still,  as  tbis  form  of  a  double  ownership  or  right 
originated  in  the  notion  of  trusts,  and  as  all  the  species  of 
equitable  interests  are  connected  by  analogy,  more  or  less 
closely,  with  trusts,  it  becomes  necessary  to  explain  the 
essential  nature  of  trusts,  and  to  describe  the  introduction 
and  development  of  their  conception  with  some  detail. 

§  150.  I  would  remark,  in  this  connection,  so  as  to  pre- 
vent misunderstanding,  that  there  are  many  important  and 
even  fundamental  principles  and  doctrines  which  are  ap- 
plied in  all  parts  of  the  equity  jurisprudence,  but  which 
do  not  belong  to  a  statement  of  its  jurisdiction.  These 
doctrines  do  not  determine  the  existence  of  equitable  es- 
tates and  interests,  nor  fix  the  form  and  nature  of  equitable 
remedies ;  but  they  aid  in  defining  and  regulating  the  rights, 
duties,  and  liabilities  incident  to  such  estates  and  interests, 
and  furnish  rules  concerning  their  enjoyment,  transfer, 
devolution,  and  the  like;  and  they  also  serve  to  determine 
the  occasions  on  which  rights  of  action  arise,  the  extent 
to  which  parties  are  entitled  to  remedies,  and  the  kind  of 
remedy  appropriate  to  secure  or  restore  the  primary  right 
invaded.  Among  these  important  principles  and  doctrines 
of  equity  I  mention,  as  illustrations,  the  rules  established 
for  the  construction  of  wills  and  deeds ;  the  principles  which 
are  especially  concerned  with  the  administration  of  estates, 
and  the  settlement  of  the  claims  of  creditors,  encum- 
brancers, devisees,  legatees,  and  others,  upon  funds  be- 
longing to  the  same  debtor,  including  the  doctrines  of  equi- 
table and  legal  assets,  of  contribution  and  exoneration,  of 
marshaling  assets  and  securities,  of  election,  of  satisfaction 
and  performance,  of  priorities,  and  of  notice;  and  other 
principles  of  equal  importance,  the  equitable  position  of 
bona  fide  purchasers,  the  theory  of  valuable  and  meri- 
torious consideration,  the  appropriation  of  pajnnents  and 
the  apportionment  of  liabilities,  the  relations  between  sure- 
ties and  their  creditors  and  the  principal  debtors,  the  con- 
trol of  transactions  between  persons  in  fiduciary  relations, 


§  151  EQUITY   JUBISPEUDENCB.  172" 

the  equitable  theory  as  to  forfeitures  and  penalties,  and  the 
general  doctrines  concerning  fraud,  mistake,  accident, 
public  policy,  and  the  like.  These  and  other  fundamental 
principles  and  doctrines  are  invoked  and  applied  through- 
out every  branch  of  equity  jurisprudence;  they  aid,  to  a 
greater  or  less  extent,  in  controlling  every  species  of  equi- 
table primary  right,  estate,  or  interest,  and  in  regulating 
every  kind  of  remedial  right  and  remedy  recognized  by 
courts  of  equity.  While  they  form  no  part  of  the  jurisdic- 
tion^ properly  so  called,  they  constitute  a  most  important 
feature  of  the  equity  jurisprudence,  and  will  be  discussed 
under  their  appropriate  connections  in  subsequent  chapters. 
The  purely  equitable  estates  and  interests  which  come 
within  the  exclusive  jurisdiction  and  constitute  the  first 
branch  thereof  are  the  following,  separated,  for  purposes  of 
convenience  as  to  treatment,  into  general  groups :  Trusts ; 
married  women's  separate  property;  equitable  interests 
arising  from  the  operation  of  the  doctrine  of  conversion; 
equitable  estates  or  interests  arising  from  mortgages  of  real 
or  of  personal  property,  and  from  pledges  of  chattels  or 
securities;  equitable  liens  on  real  and  on  personal  prop- 
erty; equitable  interests  of  assignees  arising  from  assign- 
ments of  things  in  action,  possibilities,  and  the  like,  not  as- 
signable at  law,  or  arising  from  transactions  which  do  not 
at  law  operate  as  assignments.^  I  shall  describe  with  only 
so  much  detail  as  is  necessary  each  one  of  these  groups  in 
order. 

§  151.  Trusts.—  The  whole  theory  of  trusts,  which  forms 
so  large  a  part  of  the  equity  jurisprudence,  and  which  is, 
in  a  comprehensive  view,  the  foundation  of  all  equitable 
estates  and  interests,  has  undoubtedly  been  developed  from 

iSee  1  Spcnce's  Eq.  Jur.  429-434,  435-593,  594^598,  599-604,  642.  To 
these  mif^ht  V)e  added,  as  an  example  of  equitable  primary  rights  not  being 
estates  or  interests  in  nor  liens  on  specific  property,  the  right  in  equity  of  a 
creditor  against  the  personal  representatives  of  a  deceased  joint  debtor,  al- 
though his  right  is  wholly  gone  at  law;  and  the  similar  right  of  the  personal 
representatives  of  a  deceased  joint  creditor. 


173  THE    EXCLUSIVE    JURISDICTION.  §  151 

its  germ  existing  in  the  Roman  law,  a  peculiar  mode  of 
-disposicg  of  property  by  testament  called  the  "  fidei-com- 
missum." In  a  fidei-commissum  the  testator  gave  his  es- 
tate directly  to  his  heir,  but  accompanied  the  bequest  with 
•a  direction  or  request  that  the  heir  should,  on  succeeding 
to  the  inheritance,  at  once  transfer  it  to  a  specified  bene- 
^ciary.  At  first  the  claims  of  the  beneficiary  were  purely 
moral,  resting  wholly  upon  the  good  faith  of  the  heir;  but 
in  process  of  time  they  became  vested  rights,  recognized  by 
the  law  and  enforced  by  the  magistrates.^  Borrowed  from 
this  Roman  conception,  ''  uses,"  by  which  land  was  con- 
veyed to  or  held  by  A  to  the  use  or  for  the  benefit  of  B, 
seem  to  have  been  invented  during  the  latter  part  of  the 
reign  of  Edward  III.^  They  grew  rapidly  into  favor,  and 
it  is  said  that  during  the  reign  of  Henry  V.  the  greater 
part  of  the  land  in  England  was  held  in  this  manner.  The 
*^  trusts,"  however,  of  modern  equity  jurisprudence  are  all 
directly  based  upon  the  celebrated  "  Statute  of  Uses," 
passed  in  the  twenty-seventh  year  of  the  reign  of  Henry 
YIII.  (A.  D.  3535),  although  the  principal  doctrines  which 
define  their  kinds  and  classes  and  regulate  their  operation 
may  be  traced  to  the  uses  existing  prior  to  the  statute. 
Henry  VIII.,  in  compelling  Parliament  to  enact  the  statute 
of  uses,  undoubtedly  intended  to  destroy  the  entire  system 
of  conveyances  to  uses,  by  which  the  legal  and  equitable 
estates  in  land  were  separated,  and  vested  in  different 
owners,  and  which,  for  many  reasons,  he  regarded  as  a 
fraud  upon  his  legal  rights  and  prerogatives;  but  in  fact 
no  such  result  followed.  From  the  peculiar  language  of 
the  enacting  clause,  and  by  the  judicial  interpretation 
placed  thereon,  all  the  various  kinds  of  double  ownership 
which  had  before  existed  under  the  name  of  *'  uses  "  were 
preserved  under  the  name  of  *  *  trusts. ' '  The  whole  system 
fell  within  the  exclusive  jurisdiction  of  chancery;  the  doc- 

1  See  Institutes  of  Justinian,  b.  ii,  tit.  23,  fi  1;  Sandars's  ed.,  pp.  237,  238; 

Institutes  of  Gaius,  ii.,  §§  246-259. 
« 1  Spence's  Eq.  Jur.  439-442. 


§§  152,    153  EQUITY    JURISPRUDENCE.  174 

trine  of  trusts  became  and  continues  to  be  the  most  efficient 
instrument  in  tlie  hands  of  a  chancellor  for  maintaining 
justice,  good  faith,  and  good  conscience;  and  it  has  been 
extended  so  as  to  embrace  not  only  lands,  but  chattels,  funds 
of  every  kind,  things  in  action,  and  moneys.  I  shall  merely 
state,  without  describing  in  this  part  of  my  work,  the  vari- 
ous kinds  and  classes  of  trusts  which  are  thus  subject  to 
the  exclusive  equitable  jurisdiction. 

§  152.  All  possible  trusts,  whether  of  real  or  personal 
property,  are  separated  by  an  important  line  of  division 
into  two  great  classes:  those  created  by  the  intentional, 
act  of  some  party  having  the  dominion  over  the  property, 
done  with  a  view  to  the  creation  of  a  trust,  which  are  ex- 
press trusts ;  those  created  by  operation  of  law,  where  the 
acts  of  the  parties  may  have  had  no  intentional  reference 
to  the  existence  of  any  trust,  which  are  implied  trusts. 
Express  trusts  are  again  separated  into  two  general 
classes:  private  and  public.  Private  trusts  are  those 
created  by  some  written  instrument,  deed,  or  will,  or  in 
some  trusts  of  personal  property  by  a  mere  verbal  declara- 
tion, without  any  writing,  for  the  benefit  of  certain  and 
designated  individuals,  in  which  the  cestui  que  trust,  or 
**  beneficiary,"  is  a  known  and  certain  person  or  class  of 
persons.  Public,  or  as  they  are  frequently  termed, 
charitable,  trusts  are  those  created  for  the  benefit  of  an 
unascertained,  or  uncertain,  and  sometimes  fluctating 
body  of  individuals,  in  which  the  cestuis  que  trustent  may 
be  a  class  or  portion  of  a  public  community,  as,  for  ex- 
ample, the  poor  of  a  particular  town  or  parish. 

§  153.  Express  private  trusts  are  either  ''  passive  "  or 
**  active,"  An  express  private  passive  trust  exists  where' 
land  is  conveyed  to  or  held  by  A  in  trust  for  B,  without 
any  power  expressly  or  impliedly  given  to  A  to  take  the 
actual  possession  of  the  land,  or  to  exercise  acts  of  owner- 
ship over  it,  except  by  the  direction  of  B.  The  naked 
legal  title  only  is  vested  in  A,  while  the  equitable  estate 
of  the  cestui  que  trust  is  to  all  intents  the  beneficial  owner- 


175  THE    EXCLUSIVE    JURISDICTION,  §  153 

ship,  virtually  equivalent  in  equity  to  the  corresponding 
legal  estate.^  Express  private  active,  or  as  they  are  some- 
times called,  special,  trusts  are  those  in  which,  either 
from  the  express  directions  of  the  written  instrument  de- 
claring the  trust,  or  from  the  express  verbal  directions, 
when  the  trust  is  not  declared  in  writing,  or  from  the 
very  nature  of  the  trust  itself,  the  trustees  are  charged 
with  the  performance  of  active  and  substantial  duties  in 
respect  to  the  management  of  and  dealing  with  the  trust 
property,  for  the  benefit  of  the  cestuis  que  trustent.  They 
may,  except  where  restricted  by  statute,  be  created  for 
every  purpose  not  unlawful,  and  as  a  general  rule,  may 
extend  to  every  kind  of  property,  real  and  personal.  In 
this  class,  the  interest  of  the  trustee  is  not  a  mere  naked 
legal  title,  and  that  of  the  cestui  que  trust  is  not  the  real 
ownership  of  the  subject-matter.  The  trustee  is  generally 
entitled  to  the  possession  and  management  of  the  prop- 
erty, and  to  the  receipt  of  its  rents  and  profits,  and  often 
has,  from  the  very  nature  of  the  trust,  an  authority  to 
sell  or  otherwise  dispose  of  it.  The  interest  of  the  bene- 
ficiary is  more  limited  than  in  passive  trusts,  and  in 
many  instances  cannot  with  accuracy  be  called  even  an 
equitable  estate.  He  always  has  the  right,  however,  to 
compel  a  performance  of  the  trust  according  to  its  terms 
and  intent.^  The  foregoing  classes  of  express  private 
trusts  are  all  embraced  within  the  general  exclusive 
jurisdiction  of  equity  as  it  is  established  by  the  English 
court  of  chancery;  and  they  belong  to  the  same  jurisdic- 
tion as  it  is  administered  in  the  states  of  this  country, 
except  so  far  as  they  have  been  abrogated  or  modified  by 
statute.  In  some  of  the  states  the  legislature  has  not 
interfered,  so  that  all  these  species  of  private  trusts  have 
a  theoretical,  even  if  not  an  actual,  existence.    In  several 

1  1  Spence's  Eq.  Jur.  495-497;  Cook  v.  Fountain,  3  Swanst.  591,  592,  per 
Lord  Nottingham;  Adair  v.  Shaw,  1  Schoales  &  L.  262,  per  Lord  Redesdale; 
Lloyd  V.  Spillett,  2  Atk.  150;  Raikes  v.  Ward,  1  Hare,  447,  4(64. 

» 1  Spence's  Eq.  Jur.  496,  497 ;  Lord  Glenorchy  v.  Bossville,  Cas.  t.  Talb.  3. 


§  154  EQUITY   JURISPRUDENCE.  176 

of  the  states,  however,  great  changes  have  been  made  by 
statute.  By  the  common  type  of  this  legislation,  wher- 
ever it  has  been  adopted,  all  express  private  passive  trusts 
in  land  have  been  abolished,  and  the  express  private  ac- 
tive trusts  have  been  restricted  to  a  few  specified  forms  and 
objects.^ 

§  154.    Express    Public    Trusts    or    Charities In    private 

trusts  there  is  not  only  a  certain  trustee  who  holds  the 
legal  estate,  but  there  is  a  certain  specified  cestui  que  trust. 
It  is  an  essential  feature  of  public  or  charitable  trusts, 
that  the  beneficiaries  are  uncertain,  a  class  of  persons 
described  in  some  general  language,  often  fluctuating, 
changing  in  their  individuals,  and  partaking  of  a  quasi 
public  character.  The  most  patent  examples  are  ''  the 
poor  "  of  a  specified  district,  in  a  trust  of  a  benevolent 
character,  or  *'  the  children  "  of  a  specified  town,  in  a 
trust  for  educational  purposes.  It  is  a  settled  doctrine  in 
England  and  in  many  of  the  American  states,  that  per- 
sonal property,  and  real  property  except  when  prohibited 
by  statutes  of  mortmain,  may  be  bequeathed  or  conveyed 
in  trust  for  charitable  uses  and  purposes,  for  the  benefit 
of  such  uncertain  classes;  and  if  the  purposes  are  chari- 
table within  the  meaning  given  to  that  term,  the  trust 
falls  within  the  jurisdiction  of  equity,  and  will  be  en- 
forced.^    The  trusts  over  which  this  peculiar  jurisdiction 

8Ab  examples  of  this  type  of  legislation,  see  1  R.  S.  of  N.  Y.,  p.  727, 
8§  45-65;  Civil  Code  of  Cal.,  §§  847,  852,  857-871. 

1  Morice  v.  Bisliop  of  Durham,  9  Vea.  399,  405,  10  Yes.  522,  541 ;  Mitford 
V.  Pueynolds,  1  Phila.  185;  Nash  v.  Morley,  5  Beav.  177;  Kendall  v.  Granger, 
5  Beav.  300;  Townsend  v.  Carus,  3  Hare,  257;  Nightingale  v.  Goulburn,  5 
Hare,  484;  Attorney-General  v.  Aspinal,  2  Mylne  &  C.  613,  622,  623;  British 
Museum  v.  White,  2  Sim.  &  St.  594,  596;  Coggeshall  v.  Pclton,  7  Johns.  Ch. 
292,  11  Am.  Dec.  471;  Saltonstall  v.  Sanders,  11  Allen,  446;  American 
Academy  v.  Harvard  College,  12  Gray,  582;  Jackson  v.  Phillips,  14  Allen, 
539,  per  Gray,  J.  Trusts  for  private  objects  do  not  fall  within  the  jurisdic- 
tion over  charitable  trusts,  and  are  void  if  they  create  perpetuities;  as,  for 
example,  those  for  the  erection  or  repair  of  private  tombs  or  monuments: 
In  re  Rickard,  31  Beav.  244;  Fowler  v.  Fowler,  33  Beav.  616;  Iloare  v.  Os- 
borne, L.  XL  1  Eq.  585 ;  or  those  to  found  a  private  museum :  Thompson  v, 
tihakespeare,   1   De  Gex.  F.  &,  J.  399;   or   tliose  for  the  benefit  of  a  privat* 


177  THE   EXCLUSIVE   JURISDICTION.  §  155 

extends,  and  which  mark  its  special  nature,  should  not 
be  confounded  with  gifts  to  corporations  which  are  au- 
thorized by  their  charters  to  receive  and  hold  property, 
and  apply  it  to  objects  which  fall,  perhaps,  within  the 
general  designation  of  **  charitable."  Such  gifts  are 
regulated  either  by  the  rules  of  law  applicable  to  cor- 
porations, or  by  the  provisions  of  their  individual  char- 
ters.^ There  is  a  wide  divergence  among  the  states  of 
this  country  in  their  acceptance  of  the  doctrine  concern- 
ing charitable  trusts.  In  some  of  them,  either  from  2 
statutory  abolition  of  trusts,  or  from  the  general  provi- 
sions of  statutes  concerning  perpetuities,  or  from  the  gen- 
eral public  policy  of  the  state  legislation,  it  is  held  that 
charitable  trusts  do  not  exist  at  all,  except  in  the  instances 
expressly  authorized  by  statute,  which  are  all  gifts  to  cor- 
porations.^ In  a  much  larger  number  of  the  states,  the 
jurisdiction  over  charitable  trusts,  either  on  the  ground 
that  the  statute  of  Elizabeth  is  in  force,  or  as  a  part  of 
the  ordinary  powers  of  equity,  has  been  accepted  in  a 
modified  form  and  to  a  limited  extent,  and  such  trusts 
are  upheld  only  when  the  property  is  given  to  a  trustee 
sufficiently  certain,  and  for  purposes  and  beneficiaries 
sufficiently  definite.  In  a  very  few  of  the  states  the  juris- 
diction seems  to  be  accepted  to  its  fuU  extent,  and  to  be 
exercised  in  substantially  the  same  manner  as  it  is  by  the 
English  court  of  chancery.* 

§  155.  Trusts  Arising  by  Operation  of  Law.—  The  sec- 
ond great  division  of  trusts,  and  the  one  which  in  this 
country  especially  affords  the  widest  field  for  the  jurisdic- 

company:  Attorney-Greneral  v.  Haberdashers'  Co.,  1  Mylne  &  K.  420;  or 
for  a  mere  private  charity:     Ommanney  v.  Butcher,  Turn.  &  R.  260. 

2  See  Levy  v.  Levy,  33  N.  Y.  97,  112-118,  per  Wright,  J.;  Bascom  v. 
Albertson,  34  N.  Y.  584,  587-621,  per  Porter,  J. 

3 New  York  is  a  leading  example  of  this  class:  See  Bascom  v.  Albertson, 
34  N.  Y.  584;  Levy  v.  Levy,  33  N.  Y.  97;  Beekman  v.  Bonsor,  23  N.  Y.  298, 
80  Am.  Dec.  269;  Holmes  v.  Mead,  52  N.  Y.  332,  339;  Burrill  v.  Boardman, 
43  N.  Y.  254,  263,  3  Am.  Rep.  694 ;  Adams  v.  Perry,  43  N.  Y.  487. 

*  See  Part  Third,  Chapter  of  Charitable  Trusts,  post. 

Vol.  1  —  12 


§  155'  EQUITY   JURISPRUDENCE.  17& 

tion  of  equity  in  granting  its  special  remedies  so  superior 
to  mere  recoveries  of  damages,  embraces  those  whicli  arise 
by  operation  of  law  from  the  deeds,  wills,  contracts,  acts, 
or  conduct  of  parties,  without  any  express  intention,  and 
often  without  any  intention,  but  always  without  any 
words  of  declaration  or  creation.  They  are  of  two  species, 
**  resulting  '*  and  *'  constructive,"  which  latter  are  some- 
times called  trusts  ex  maleficio;  and  both  these  species  are 
properly  described  by  the  generic  term  **  implied  trusts.'*  * 
Eesulting  trusts  arise  where  the  legal  estate  is  disposed  of 
or  acquired,  not  fraudulently  or  in  the  violation  of  any 
fiduciary  duty,  but  the  intent  in  theory  of  equity  appears 
or  is  inferred  or  assumed  from  the  terms  of  the  disposition, 
or  from  the  accompanying  facts  and  circumstances,  that  the 
beneficial  interest  is  not  to  go  with  the  legal  title.  In  such  a 
case  a  tnist  *'  results  "  in  favor  of  the  person  for  whom  the 
equitable  interest  is  thus  assumed  to  have  been  intended, 
and  whom  equity  deems  to  be  the  real  owner.^  *    Construc- 

1  There  is  another  kind  which  are  sometimeSj  but  very  improperly, 
called  "implied"  trusts;  namely,  where  a  party,  by  a  written  instrument, 
deed,  or  will,  has  intended  to  create  a  trust  for  some  specific  object,  and  haa 
used  language  showing  that  intent;  but  the  language  he  has  employed  does 
not  in  express  terms  declare  and  create  the  trust,  so  that  the  court,  in  de- 
ciding upon  the  effect  of  the  instrument,  is  obliged  to  construe  or  interpret 
the  words,  in  order  that  they  may  amount  to  a  declaration  of  the  trust.  The 
most  familiar  illustration  is  that  of  a  trust  arising  from  mere  precatory 
words  in  a  deed  or  will.  These  trusts  have  no  resemblance  whatever  to  those 
which  "  arise  by  operation  of  law " ;  they  are  in  every  respect  express 
trusts,  either  active  or  passive;  they  only  differ  in  form  from  ordinary 
express  trusts  from  a  certain  vagueness  or  incompleteness  of  the  language 
used  to  create  or  declare  them,  so  that  a  court  is  forced  to  interpret  this 
language.  When  interpreted,  it  becomes  in  every  sense  an  express  declara- 
tion of  the  trust.  To  include  these  instances  among  implied  trusts  is  to 
violate  every  principle  of  true  classification,  and  to  introduce  an  unneces- 
sary confusion  into  the  subject.  All  true  implied  trusts  differ  from  express 
trusts,  not  only  in  the  manner  of  their  creation,  but  also  in  their  essen- 
tial features  and  qualities. 

2  The  following  cases  furnish  illustrations:  Ackroyd  v.  Smithson,  1 
IJrown  Ch.  503,  1  Lead.  Cas.  Eq.  1177;  Robinson  v.  Taylor,  2  Brown  Ch. 
689;    Berry   v.   Usher,    11    Ves.   87;    Watson   v.   Hayes,   5   Mylne   &   C.    125; 

(a)   The  text  is  quoted  in  Springer  v.  Young,   14  Oreg.  280,   12  Pac.  400, 


179  THE    EXCLUSIVE   JURISDICTION.  §  15S 

tive  trusts  are  raised  by  equity  for  the  purpose  of  working 
out  right  and  justice,  where  there  was  no  intention  of  the 
party  to  create  such  a  relation,  and  often  directly  contrary 
to  the  intention  of  the  one  holding  the  legal  title.  All  in- 
stances of  constructive  trust  may  be  referred  to  what  equity 
denominates  fraud,  either  actual  or  constructive,  including 
acts  or  omissions  in  violation  of  fiduciary  obligations.  If 
one  party  obtains  the  legal  title  to  property,  not  only  by 
fraud  or  by  violation  of  confidence  or  of  fiduciary  relations, 
but  in  any  other  unconscientious  manner,  so  that  he  cannot 
equitably  retain  the  property  which  really  belongs  to  an- 
other, equity  carries  out  its  theory  of  a  double  ownership,, 
equitable  and  legal,  by  impressing  a  constructive  trust  upon 
the  property  in  favor  of  the  one  who  is  in  good  conscience 
entitled  to  it,  and  who  is  considered  in  equity  as  the  bene- 
ficial owner.^''  Courts  of  equity,  by  thus  extending  the 
fundamental  principle  of  trusts  —  that  is,  the  principle  of 
a  division  between  the  legal  estate  in  one  and  the  equitable 
estate  in  another  —  to  cases  of  actual  or  constructive  fraud 
and  breaches  of  good  faith,  are  enabled  to  wield  a  remedial 
power  of  tremendous  efficacy  in  protecting  the  rights  of 
property. 

§  156.  Executors  and  Administrators  —  Estates  of  Deceased 
Owners —  The  theory  of  trusts  express  and  implied  having 
been  established,  it  was  easily  extended  to  certain  other 
analogous  subjects  which  were  thus  brought  within  the  equi- 

Jessop  V.  Watson,  1  Mylne  &  K.  665;  Eyre  v.  Marsden,  2  Keen,  564;  Burley 
V.  Evelyn,  16  Sim.  290;  Wood  v.  Cone,  7  Paige,  472,  476;  Wood  v.  Keyes,  8 
Paige,  365,  369;  JVIillard  v.  Hathaway,  27  Cal.  119;  Malony  v.  Sloans,  44 
Vt.  311. 

3  1  Perry  on  Trusts,  §  166;  1  Spence's  Eq.  Jur.  511,  512;  McLane  v. 
Johnson,  43  Vt.  48;  Collins  v.  Collins,  6  Lans.  368;  Thompson  v.  Thompson, 
16  Wis.  94;  Pillow  v.  Brown,  26  Ark.  240;  Eyan  v.  Dox,  34  N.  Y.  307,. 
90  Am.  Dec,  696;  Dodd  v.  Wakeman,  26  N.  J.  Eq.  484;  Green  v.  Ball, 
4  Bush,  586;  Hunt  v.  Roberts,  40  Me.  187;  Hodges  v.  Howard,  5  R.  I.  149;. 
Laing  v.  McKee,  13  Mich.  124,  87  Am.  Dec.  738;  Nelson  v.  Worrall,  20  Iowa, 
469;  Coyle  v.  Davis,  20  Wis.  593;  Hidden  v.  Jordan,  21  Cal.  92;  Sandfoss 
V.  Jones,  35  Cal.  481. 

(b)   The  text  is  quoted  in  Springer  v.  Young,  14  Oreg.  280,  12  Pac.  400. 


I  156  EQUITY   JUEISPRUDENCB.  180 

table  jurisdiction.  One  of  the  most  important  of  these  was 
the  administration  of  the  estates  of  deceased  persons.  The 
relation  subsisting  between  executors  and  administrators  on 
the  one  hand,  and  legatees,  distributees,  and  creditors  on 
the  other,  has  so  many  of  the  features  and  incidents  of  an 
■express  active  trust,  that  it  has  been  completely  embraced 
within  the  equitable  jurisdiction  in  England,  and  also  in  the 
United  States,  where  statutes  have  not  interfered  to  take 
away  or  to  abridge  the  jurisdiction.  At  the  common  law 
no  action  lay  to  recover  a  legacy,  unless  it  was  a  specific 
legacy  of  goods,  and  the  executor  had  assented  to  it  so 
that  the  property  therein  vested  in  the  legatee.^  Although 
indi^adual  creditors  might  recover  judgments  at  law  for  the 
amount  of  their  respective  claims,  the  legal  procedure  fur- 
nished absolutely  no  means  by  which  the  rights  and  claims 
of  all  distributees,  legatees,  and  creditors  could  be  ascer- 
tained and  ratably  adjusted,  the  assets  proportionably  dis- 
tributed among  those  having  demands  of  an  equal  degree  as 
to  priority,  and  the  estate  finally  settled.  The  power  of  the 
ancient  **  spiritual  courts  "  over  the  subject-matter  was 
also  very  limited  and  imperfect ;  in  many  instances  it  could 
furnish  no  relief,  and  was  at  best  but  **  a  lame  jurisdic- 
tion."^ Where  the  claim  against  an  estate  was  purely 
equitable,  as  where  a  testator  had  charged  land  with  his 
debts  or  legacies,  thus  creating  an  equitable  lien,  or  had  de- 
vised property  in  trust  for  the  payment  of  debts  or  legacies, 
and  the  like,  the  court  of  chancery  had,  of  course,  an  origi- 
nal and  exclusive  jurisdiction.  In  all  other  cases  it  ob- 
tained a  jurisdiction  because  its  relief  was  more  complete, 
and  it  alone  could  provide  for  the  rights  and  claims  of  all 
parties.  This  jurisdiction  at  length  became  firmly  estab- 
lished and  practically  exclusive  on  this  groimd  of  trusts; 
that  the  relation  between  the  executor  or  administrator  and 
the  parties  interested  in  the  estate  is  virtually  one  of  ex- 

1  Doeks  V.  Strutt,  5  Term  Rep.  GOO;  Doe  v.  Guy,  3  East,  120. 

2  ScK-    I'iimplin   v.   Green,   3   Cas.   Chan.   95;    Matthews  v.   Newby,   1   Vern. 
334,  2  Freein.  189;  Petit  v.  Smith,  5  Mod.  247. 


181  THE   EXCLUSIVE   JUKISDICTION.  §  157 

press  trust,  which  equity  has  always  the  power  to  enforce.' 
Throughout  the  great  majority  of  the  United  States,  how- 
ever, this  jurisdiction  of  equity,  even  where  not  expressly 
abrogated,  has  become  virtually  obsolete.  Partly  from  pro- 
hibitory and  partly  from  permissive  statutes,  the  jurisdic- 
tion over  the  administration  of  decedents'  estates  in  all  ordi- 
nary cases  has  been  wholly  withdrawn  from  the  equity  tri- 
bunals and  exclusively  exercised  by  the  probate  courts  in  all 
the  states,  with  very  few  exceptions.*  Although  the  gen- 
eral jurisdiction  of  equity  over  the  subject  of  administra- 
tions is  thus  practically,  and  even  in  some  instances  ex- 
pressly, abolished  in  so  many  states,  still  the  juris- 
diction remains  in  all  matters  of  trust  created  by  or 
arising  from  the  provisions  of  wills ;  and  thus  a  large  field 
is  left  for  the  exercise  of  the  equitable  jurisdiction  in  the 
construction  of  wills,  and  in  the  determination  and  enforce- 
ment of  equitable  rights,  interests,  and  estates  created  and 
conferred  thereby." ' 

§  157.  Fiduciary  Relations. —  The  equitable  doctrine  of 
trusts  has  also  been  extended  so  as  to  embrace,  either  wholly 
or  partially,  many  other  relations  besides  those  of  trusts  cre- 
ated by  private  owners  of  property.  Guardians  of  infants^ 
committees  or  guardians  of  the  insane,  receivers,  directors^ 
and  other  managers  of  stock  corporations,  and  the  like,  are 

sSee  Adair  v.  Shaw,  1  Schoales  &  L.  262,  per  Lord  Redesdale;  Anonymous, 
1  Atk.  491,  per  Lord  Hardwicke. 

*  See  post,  chap,  iii.,  sec.  ii.,  §§  346-352,  where  this  matter  is  more  fully 
described. 

5  Whitman  v.  Fisher,  74  111.  147;  Campbell's  Appeal,  80  Pa.  St.  298  j 
Harris  v.  YersereaUj  52  Ga.  153;  Dorsheimer  v.  Rorback,  23  N.  J.  Eq.  46; 
Youmans  v.  Yoimians,  26  N.  J.  Eq.  149;  Haag  v.  Sparks,  27  Ark.  594; 
Jones  V.  Jones,  28  Ark.  19;  Duncan  v.  Duncan,  4  Abb.  N.  C.  275;  Marlett 
V.  Marlett,  14  Hun,  313;  Chipman  v.  Montgomery,  63  N.  Y.  221;  Bailey  v. 
Briggs,  56  N.  Y.  407;  Brimdage  v.  Brundage,  65  Barb.  397;  Collins  v. 
Collins,  19  Ohio  St.  468;  Perkins  v.  Caldwell,  77  N.  C.  433;  Heustis  r. 
Johnson,  84  111.  61;  Matter  of  Broderick's  Will,  21  Wall.  504. 

(a)  The  text  is  cited  in  Benedict       istration  of  decedents'  estates,  poitf 
V.   Wilmarth    (Fla.),    35    South,    84.       8§  1152-1154,  and  notes. 
See,  as  to  the  jurisdiction  in  admin- 


§  158  EQUITY    JURISPRUDENCE.  182 

in  a  general  sense  trustees,  or  rather  quasi  trustees,  in  re- 
spect of  the  particular  persons  towards  whom  they  stand  in 
a  fiduciary  relation, —  the  wards,  stockholders,  etc.* '  But 
the  analogy  should  not  be  pushed  too  far.  The  trust  which 
exists  in  these  and  similar  cases  is  not  of  so  high  and  com- 
plete a  character  that  equity  has  an  exclusive  jurisdiction 
over  the  rights  and  interests  of  the  beneficiaries,  to  maintain 
and  enforce  them  against  the  trustees.  The  law,  by  means 
of  its  actions  ex  cequo  et  bono,  supplies  the  beneficiaries 
with  sufficient  remedies  for  many  violations  of  such  fidu- 
ciary relations.  The  relations  in  which  such  persons  stand 
towards  their  beneficiaries  partake  so  much  of  the  trust 
character,  however,  that  equity  possesses  a  jurisdiction  in 
many  instances  where  its  remedies  are  more  effective,  or  its 
modes  of  procedure  enable  the  court  to  do  more  complete 
justice  by  its  decrees. 

§  158.  While  the  jurisdiction  of  equity  in  these  last-men- 
tioned cases  of  fiduciary  relations  is  concurrent  and  depends 
upon  the  superiority  of  its  remedies,  the  exclusive  jurisdic- 
tion in  the  cases  before  described  of  private  express  tinists 
proper,  whether  passive  or  active,  is  wholly  independent  of 
the  nature  of  the  remedies  given.  The  actual  remedies 
w^hich  a  court  of  equity  gives  depend  upon  the  nature  and 
object  of  the  trust;  sometimes  they  are  specific  in  their 
character,  and  of  a  kind  which  the  law  courts  cannot  ad- 

1  Keech  v.  Sanford,  Sel.  Cas.  Ch.  61,  1  Lead.  Cas.  Eq.  48;  Fox  v.  Mack- 
reath,  2  Brown  Ch.  400,  2  Cox,  320,  1  Lead.  Cas.  Eq.  188;  Morret  v.  Paske, 
2  Atk.  54;  Kimber  v.  Barber,  L.  R.  8  Ch.  56;  Powell  v.  Glover,  3  P.  Wma. 
252 ;  Wedderburn  v.  Wedderburn,  4  Mylne  &  C.  41 ;  Gt.  Luxembourg  R'y 
Co.  V.  Magnay,  25  Beav,  586;  Docker  v.  Somes,  2  Mylne  &  K.  665;  Knox 
V.  Gye,  L.  R.  5  H.  L.  656,  675;  Gresley  v.  Mousley,  4  De  Gcx  &  J.  78,  3  De 
Gex.  F.  &  J.  433;  Ilolman  v.  Loynes,  4  De  Gex,  M.  &  G.  270;  Hesse  v. 
Briant,  6  De  Gex,  M.  &  G.  623;  Knight  v.  Bowyer,  2  De  Gcx  &  J.  421,  445; 
Savery  v.  King,  5  H.  L.  Cas.  627;  Dodge  v.  Woolsey,  18  How.  331,  341; 
Koehler  v.  Black  R.,  etc.,  Co.,  2  Black,  715;  Butts  v.  Wood,  37  N.  Y.  317; 
Bliss  V.  Matteson,  45  N.  Y.  22;  Neall  v.  Hill,  16  Cal.  145,  76  Am.  Dec.  508. 

(a)  The   text   is   cited   in   Benedict       Minn.  43,  77  N.  W,  430   (receiver  as 
V.    Wilmarth    (Fla.),    35    South.   84;        trustee). 
in     Donahue     v.      Quackenbush,     75 


183  THE   EXCLUSIVE   JURISDICTION.  §§  159,  160 

minister,  but  often  they  are  of  the  same  general  kind  as 
those  obtained  in  legal  actions,  being  mere  recoveries  of 
money.  A  court  of  equity  will  always  by  its  decree  declare 
the  rights,  interest,  or  estate  of  the  cestui  que  trust,  and 
will  compel  the  trustee  to  do  all  the  specific  acts  required 
of  him  by  the  terms  of  the  trust.  It  often  happens  that  the 
final  relief  to  be  obtained  by  the  cestui  que  trust  consists  in 
the  recovery  of  money.  This  remedy  the  courts  of  equity 
will  always  decree  when  necessary,  whether  it  is  confined 
to  the  payment  of  a  single  specific  sum,  or  involves  an  ac- 
counting by  the  trustee  for  all  that  he  has  done  in  pursu- 
ance of  the  trust,  and  a  distribution  of  the  trust  moneys 
among  all  the  beneficiaries  who  are  entitled  to  share  therein. 

§  159.  Married  Women's  Separate  Property. —  The  married 
woman's  separate  estate,  prior  to  any  legislation  on  the 
subject,  is  merely  a  particular  case  of  trusts,  and  the  juris- 
diction of  equity  over  it  has  been  long  established.^  As  the 
wife's  interest  in  the  property  held  to  her  separate  use  is 
wholly  a  creature  of  equity,  the  equitable  jurisdiction  over 
it  is  of  course  exclusive;  and  in  direct  antagonism  to  the 
common-law  theory,  equity  regards  and  treats  the  wife, 
with  respect  to  such  separate  estate,  as  though  she  were 
unmarried.^  This  equitable  separate  estate  of  married 
women  being  only  a  species  of  trust  property  held  upon 
express  trust,  either  passive  or  active,  it  is  of  course  em- 
braced within  the  legislation  of  various  states  abolishing  or 
restricting  and  regulating  such  trusts. 

§  160.  This  jurisdiction  of  equity,  so  far  as  it  is  con- 
cerned with  the  contracts  of  married  women^  and  their  other 

1  See  Drake  v.  Storr,  1  Freem.  205,  which  shows  that  in  1695  the  wife's 
separate  estate  was  a  well-settled  doctrine  of  equity. 

2  Lady  Arundel  v.  Phipps,  10  Ves.  140;  Grigby  v.  Cox,  1  Ves.  Sen.  517; 
Hulme  V.  Tenant,  1  Brown  Ch,  16;  Field  v.  Sowle,  4  Russ.  112;  Owens  v. 
Dickenson,  Craig  &  P.  48;  Nantes  v.  Corrock,  9  Ves,  189;  Aylett  v.  Ashton, 
1  Mylne  &  C.  105,  112;  La  Touche  v.  La  Touche,  3  Hurl.  &  C.  576;  Heatley 
V.  Thomas,  15  Ves.  596;  McHenry  v.  Davies,  L.  R.  10  Eq.  88;  Murray  v. 
Barlee,  3  Mylne  &  K.  209;  Owen  v.  Homan,  4  H.  L.  Cas.  997;  Johnson  v. 
■Callagher,  3  Be  Gex,  F.  &  J.  494,  521. 


§  161  EQUITY   JUKISPRUDENCB.  184 

dealings  with  their  separate  property,  has  been  greatly  en- 
larged by  the  modem  legislation  in  many  of  the  states. 
These  statutes,  it  is  true,  do  not  create  any  equitable  estate ; 
their  effect  is  to  vest  a  purely  legal  title  in  the  wife,  and  to 
free  such  title  from  the  interests  and  claims  and  rights 
which  the  common  law  gave  to  the  husband.  But  while  the 
legislation  thus  acts  upon  her  title,  it  does  not,  in  general, 
remove  the  common-law  disability  of  entering  into  con- 
tracts, or  clothe  the  wife  with  a  general  capacity  of  making 
contracts  which  are  binding  at  law,  and  enforceable  against 
them  by  legal  actions.  The  matter  of  married  women's  con- 
tracts is  therefore  left  exclusively  to  courts  of  equity,  and 
is  governed  by  equitable  doctrines.  The  jurisdiction  of 
equity  in  the  enforcement  of  married  women's  liabilitie& 
against  their  separate  property  has  thus  been  enlarged^ 
since  it  has  been  extended  in  these  states  to  all  the  prop- 
erty which  a  wife  may  hold  by  a  legal  title,  and  is  not  con- 
fined to  such  equitable  estate  as  is  held  for  her  separate 
use.^ 

§  161.  Equitable  Estates  Arising  from  the  Doctrine  of 
Conversion —  The  doctrine  of  **  conversion  "  is  a  particular 
application  of  the  principle  that  equity  regards  as  done  what 
ought  to  be  done.  The  doctrine  itself  was  thus  stated  by  an 
eminent  English  equity  judge  in  the  leading  case  upon  the 
subject:  **  Nothing  is  better  settled  than  this  principle,  that 
money  directed  to  be  employed  in  the  purchase  of  land>  and 
land  directed  to  be  sold  and  turned  into  money,  are  to  be  con- 
sidered as  that  species  of  property  into  which  they  are  di- 
rected to  be  converted;  and  this,  in  whatever  manner  the 
direction  is  given,  whether  by  will,  by  way  of  contract,  mar- 
riage articles,  settlement,  or  otherwise;  and  whether  the 
money  is  actually  deposited  or  only  covenanted  to  be  paid, 
whether  the  land  is  actually  conveyed  or  only  agreed  to  be 
conveyed,  the  owner  of  the  fimd,  or  the  contracting  parties,, 
may  make  land  money,  or  money  land.    The  cases  establish 

1  See  post,  part  iii.,  chapter  on  Married  Women's  Separate  Property, 
where  an  abstract  of  the  legislation   in  the  various  states  is  given. 


185  THE    EXCLUSIVE    JURISDICTIOlf.  §  162 

this  rule  universally."*  As  this  doctrine  of  conversion  is 
wholly  a  creation  of  the  equitable  jurisprudence,  the  estates 
or  interests  which  result  from  it  are  entirely  equitable  in 
their  nature,  and  equity  has  an  exclusive  jurisdiction  to 
maintain  and  protect  such  interests,  whether  the  remedy 
which  it  gives  in  any  particular  case  consists  in  establish- 
ing a  person's  right  to  a  specific  piece  of  land,  or  merely  in 
granting  a  recovery  of  money* 

§  162.  Mortgages.*  —  At  the  common  law  a  mortgage  of 
land  is  a  conditional  conveyance  of  the  legal  title,  subject 
to  be  defeated  by  the  mortgagor's  performing  the  condition, 
paying  the  debt  on  the  very  day  stipulated.  If  the  condi- 
tion for  any  reason  was  not  performed  on  that  day,  the 
conveyance  ipso  facto  became  absolute,  the  mortgagee's  es- 
tate became  a  perfect  legal  title,  in  fee,  for  life,  or  for  years, 
according  to  the  terms  of  the  deed,  and  all  the  mortgagor's 
interest  under  the  instrument  was  completely  gone.  In 
other  words,  the  law  applied  to  a  mortgage  the  same  strict 
rules  which  had  been  established  with  regard  to  every  con- 
ditional conveyance.  Side  by  side  with  this  harsh  system  of 
the  law,  the  court  of  chancery  developed  another  theory, 
which  may  justly  be  regarded  as  the  most  magnificent  tri- 
umph of  equity  jurisprudence  over  the  injustice  of  the  com- 
mon law.  The  source  of  this  theory  was  found  in  the  prin- 
ciple that  equity  can  and  will  relieve  against  legal  penal- 
ties and  forfeitures,  whenever  the  person  who  seeks  to  en- 
force them  may  be  fairly  compensated  by  an  award  of 

1  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  per  Sir  Thomas  Sewell,  M.  R. ; 
Lechmere  v.  Carlisle,  3  P.  Wms.  223;  Wheldale  v.  Partridge,  5  Ves.  396, 
8  Ves.  227;  Harcourt  v.  Seymour,  2  Sim.  N.  S.  12,  45;  In  re  Pedder,  5 
De  Gex,  M.  &  G.  890;  Craig  v.  Leslie,  3  Wheat.  564;  Peter  v.  Beverly, 
10  Pet.  534,  563;  Lorillard  v.  Coster,  5  Paige,  173,  218;  Gott  v.  Cook,  7 
Paige,  523,  534;  Kane  v.  Gott,  24  Wend.  641,  659,  660,  35  Am.  Dec.  641; 
Pratt  V.  Taliaferro,  3  Leigh,  419,  421,  427;  Siter  v.  McClanachan,  2  Gratt. 
280;  Smith  v.  McCrary,  3  Ired.  Eq.  204,  207;  Samuel  v.  Samuel's  Adm'ra, 
4  B.  Mon.  245,  253;  Allison  v.  Wilson's  Ex'rs,  13  Serg.  &  R.  330,  332, 

§  161,    (a)    The  text  is  cited  in  §  162,    (a)    Sections   162,   163  are 

Greenland  v.  Waddell,  116  N.  Y.  239,       cited  in  Savings  &  Loan  Soc.  v.  David- 
15  Am.  St.  Rep.  400,  22  N.  E.  367.  son,  97  Fed.  696,  713,  38  C.  A.  A.  365, 


§  162  EQUITY   JURISPRUDENCE.  186 

money.  As  early  as  the  reign  of  James  I.  the  court  of  chan- 
cery had  begun  to  relieve  the  mortgagor;  and  in  the  reign 
of  Charles  I,  his  right  to  redeem,  after  a  failure  to  perform 
the  condition,  had  become  fully  recognized  as  a  part  of  the 
equity  jurisprudence.^  This  equitable  right  of  the  mort- 
gagor was  termed  his  ''  equity  of  redemption;"  that  is,  his 
^*  right  in  equity  to  redeem."  At  first  this  equity  of  re- 
demption was  regarded  as  a  mere  right  or  thing  in  action, 
and  at  the  close  of  the  reign  of  Charles  II.  it  was  said  to 
be  a  mere  right  to  recover  the  land  in  equity  after  a  failure 
to  perform  the  condition,  and  not  to  be  an  estate  in  the 
land.^  This  narrow  view,  howeyer,  was  soon  abandoned; 
the  equitable  theory  became  more  consistent  and  complete, 
until  in  1737  Lord  Hardwicke  laid  down  the  doctrine  as  al- 
ready established,  and  which  has  since  been  regarded  as  the 
very  central  notion  of  the  equitable  theory,  that  an  equity 
of  redemption  is  (in  equity)  an  estate  in  the  land,  which  may 
be  devised,  granted,  or  entailed  with  remainder ;  that  it  can- 
not be  considered  as  a  mere  right  only,  but  such  an  estate 
whereof  there  may  be  a  seisin;  and  that  the  person  there- 
fore entitled  to  the  equity  of  redemption  is  considered  as 
the  owner  of  the  land,  and  a  mortgage  in  fee  is  considered 
as  personal  assets,'  It  should  be  carefully  observed  that 
by  this  theory  the  mortgagor's  estate  is  wholly  an  equitable 
one;  neither  in  equity  nor  at  law  is  he  regarded  as  retain- 
ing the  legal  estate.  Being  purely  a  creation  of  equity,  it 
fell,  of  course,  under  the  exclusive  jurisdiction  of  chancery, 
and  was  maintained  and  protected  by  means  of  the  remedy 
obtained  in  a  suit  for  redemption.  This  double  mode  of 
dealing  with  mortgages,  the  legal,  the  only  one  recognized 
and  administered  by  the  courts  of  law,  and  the  equitable, 
prevailing  alone  in  the  court  of  chancery,  has  continued 
to  exist  in  England  until  the  present  day. 

1  Emanuel    College   v.    Evans,    1    Rep.    Chan.    18;    1   Jones   on   Mortgages, 
{8  6,  7;  Coote  on  Mortgages,  21. 

2  Roscarrick  v.  Barton,  1  Cas.  Chan.  217. 
3CaKhornc  v.  Scarfe,  1  Atk.  603. 


187  THE    EXCLUSIVE    JURISDICTION.  §  163 

§  163.  The  English  system  has  not  been  adopted  to  its 
full  extent  in  any  of  the  American  states.  Two  entirely  dif- 
ferent methods  of  viewing  the  mortgage  have  become  estab- 
lished in  the  states  of  this  country,  and  the  states  themselves 
must  be  separated  into  two  great  classes  with  respect  to 
their  adoption  of  one  or  the  other  of  these  methods :  1.  In 
nearly  half  of  the  states  and  territories  the  conflict  be- 
tween the  legal  and  the  equitable  conceptions  is  entirely  re- 
moved. The  legal  theory  of  mortgages  has  been  abandoned, 
and  the  equity  theory  has  been  left  in  full  force,  furnishing 
a  single  and  uniform  collection  of  rules,  recognized  and  ad- 
ministered, so  far  as  necessary,  alike  by  courts  of  law  and 
of  equity.  The  mortgage  is  not  a  conveyance ;  it  confers  no 
estate  in  the  land  upon  the  mortgagee.  It  simply  creates  a 
lien  on  the  land  as  security  for  the  debt  due.  The  mort- 
gagor's estate,  instead  of  being  equitable,  an  equity  of  re- 
demption, is,  for  all  purposes,  and  between  all  parties,  the 
legal  estate,  but  encumbered  by  the  lien  created  by  the  mort- 
gage. This  simple  conception  is  carried  out  with  all  its 
consequences,  not  only  as  between  the  immediate  parties, 
but  as  between  all  persons  who  have  or  acquire  any  interest 
in  or  claim  upon  the  mortgage  itself  or  the  land  which  is 
subject  to  the  mortgage.^  2.  The  second  method,  which 
prevails  in  the  residue  of  the  states  and  territories,  may  be 
briefly  described  as  follows:  Between  the  immediate  par- 
ties —  the  mortgagor  and  mortgagee  and  persons  holding 
under  them  —  the  legal  conception  is  acknowledged,  and 
the  legal  rights  and  duties  flowing  from  the  mortgage  a^  a 
conveyance  of  the  legal  estate  are  recognized  and  enforced 
by  the  courts  of  law.  But  as  between  the  mortgagor  and  his 
representatives  and  all  other  persons  not  holding  under  or 
through  the  mortgagee,  the  legal  conception  has  been  en- 
tirely abandoned,  and  the  equity  view  has  been  adopted  by 

1  This  method  has  been  adopted  in  the  following  states  and  territories ; 
California,  Colorado,  Dakota,  Florida,  Georgia,  Indiana,  Iowa,  Kansas,  Loui- 
siana, Michigan,  Minnesota,  Nebraska,  Nevada,  New  York,  Oregon,  South 
Carolina,  Texas,  Utah,  and  Wisconsin, 


§  164  EQUITY    JUEISPEUDENCB.  188^ 

all  courts,  of  law  as  well  as  of  equity.  Finally,  the  equity 
theory  exists,  is  in  fact  the  only  one  administered  by  courts 
of  equitable  jurisdiction,  and  is  applied  by  them  to  all  par- 
ties in  the  same  manner  and  to  the  same  extent  as  by  the 
court  of  chancery  in  England.^ 

§  164.  Mortgage  of  Personal  Property. —  While  a  mort- 
gage of  personal  property  is,  at  the  common  law,  a  condi- 
tional sale,  which  becomes  absolute,  passing  a  perfect  legal 
ownership  on  the  mortgagor 's  failure  to  perform  the  condi- 
tion, yet  the  doctrine  is  well  settled  that  an  equity  of  re- 
demption exists ;  and  the  equitable  jurisdiction  is  undoubted 
to  relieve  the  mortgagor  by  a  suit  to  redeem,  even  though 
the  mortgagee  has  taken  possession  of  the  chattels,  at  any 
time  before  the  mortgagor's  right  has  been  foreclosed  by 
a  public  sale  of  the  mortgaged  property.*  Even  after  such 
a  sale,  if  there  has  been  any  element  of  bad  faith  or  inequi- 
table conduct  on  the  part  of  the  mortgagee,  the  mortgagor 
may  still  sometimes  maintain  a  suit  for  an  accounting.^ 
The  jurisdiction  also  extends  to  the  mortgagee's  iaterest^ 
which  may  be  protected  and  enforced  by  a  suit  brought  to 
foreclose  the  mortgagor's  right  of  redemption,  and  to  sell 
the  mortgaged  property,  similar  to  the  suit  so  common  in 
the  United  States  for  the  foreclosure  of  a  mortgage  of 
land.^  ^  A  like  jurisdiction  exists  over  pledges  of  chattels 
or  of  things  in  action ;  the  pledgee  may  enforce  his  security 

§  163,  2  The  second  method  has  been  adopted  in  the  following  states:  Ala- 
bama, Arkansas,  Connecticut,  Delaware,  Illinois,  Kentucky,  Maine,  Mary- 
land, Massachusetts,  Mississippi,  Missouri,  New  Hampshire,  New  Jersey,^ 
North  Carolina,  Ohio,  Pennsylvania,  Rhode  Island,  Tennessee,  Vermont* 
Virginia,  and  West  Virginia. 

§  164,  1  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  100,  101;  Stoddard  v.  Denison,  7 
Abb.  Pr.  N.  S.  309 ;  Flanders  v.  Chamberlain,  24  Mich,  305 ;  Heyland  v.  Badger, 
35  Cal.  404. 

§  164,  2  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  100;  Lansing  v.  Goelet,  9  Cow.  372, 
per  Jones,  C. ;  Charter  v.  Stevens,  3  Denio,  33,  45  Am.  Dec.  444;  Huntington 
V.  Mather,  2  Barb.  538;   Mattison  v.  Baucus,  1  N.  Y.  296. 

(a)  The  text  is  cited  to  this  ef-  cited  in  M'Cormick  v.  Hartley,  107 
feet  in  Lang  v.  Thacher,  48  App.  Div.  Ind.  248,  6  N.  E.  357  (jurisdiction 
(N.  Y.)   313,  62  N.  Y.  Suppl.  950.  to    protect    the    mortgagee's    interest 

(b)  This  paragraph   of  the  text   is  before  the  debt  is  due). 


1,89  THE   EXCLUSIVE   JURISDICTION.  §  165 

by  a  suit  for  a  foreclosure  and  sale.^  "^  Under  special  cir- 
cumstances the  pledgor  may  maintain  an  equitable  action 
for  a  redemption.^  In  some  of  the  states  the  common-law 
view  of  the  chattel  mortgage  as  a  conditional  sale  has  been 
totally  abandoned ;  the  mortgage  itself  has  been  assimilated 
to  the  mortgage  of  land  as  only  creating  a  lien, —  a  mere 
hypothecation, —  the  legal  ownership  with  all  its  incidents, 
including  the  right  of  possession,  being  left  in  the  mort- 
gagor until  the  lien  is  enforced  and  the  mortgagor 's  interest 
extinguished,  either  by  means  of  an  equitable  suit  or  by  a 
public  sale.^ 

§  165.  Equitable  Liens,  analogous  to  mortgages,  con- 
sidered from  the  purely  equitable  point  of  view,  are  the 
class  of  interests  embraced  under  the  denomination  of 
**  equitable  liens."  An  equitable  lien  is  not  an  estate  or 
property  in  the  thing  itself,  nor  a  right  to  recover  the  thing, 
—  that  is,  a  right  which  may  be  the  basis  of  a  possessory 
action;  it  is  neither  a  jus  ad  rem  nor  a  jus  in  re}  It  is 
simply  a  right  of  a  special  nature  over  the  thing,  which 
constitutes  a  charge  or  encumbrance  upon  the  thing,  so  that 
the  very  thing  itself  may  be  proceeded  against  in  an  equi- 
table action,  and  either  sold  or  sequestered- under  a  judicial 
decree,  and  its  proceeds  in  the  one  case,  or  its  rents  and 
profits  in  the  other,  applied  upon  the  demand  of  the  party 
in  whose  favor  the  lien  exists.  It  is  the  very  essence  of  this 
conception,  that  while  the  lien  continues,  the  possession  of 

8  Ex  parte  Mountford,  14  Ves,  606;  Freeman  v.  Freeman,  17  N.  J.  Eq. 
44;  Dupuy  v.  Gibson,  36  111.  197;  Donohue  v.  Gamble,  38  Cal.  340;  Civ. 
Code  of  Cal.,  §  3011. 

4  Jones  V.  Smith,  2  Ves.  372;  Bartlett  v.  Johnson,  9  Allen,  530;  Has- 
brouck  V.  Vandervoort,  4  Sand.  74. 

6As,  for  example,  in  California:  Civ.  Code,  §§  2920,  2923,  2927,  2931, 
2936,  2967-2970,  3000-3002. 

1  See  Peck  v.  Jenness,  7  How.  620,  per  Grier,  J. 

(c)  Cited  to  this  effect  in  Cleghorn  Caffrey,    178    111.    107,    69    Am.    St. 

V.  Minnesota  T.  I.  &  T.  Co.,  57  Minn,  Rep.  290,  52  N,  E.  898,  and  the  prin- 

341,  47  Am.  St.  Rep.  615,  59  N.  W.  ciple  applied,  by  analogy,  to  the  en- 

320.  This  section  of  the  text  was  forcement  in  e<julty  of  a  bailee's  lien, 
cited  in  Knapp,  Stout  &  Co.  t.  Mc- 


§  166  EQUITY   JURISPRUDENCE.  190 

the  thing  remains  with  the  debtor  or  person  who  holds  th& 
proprietary  interest  subject  to  the  encumbrance.- 

§  166.  The  doctrine  of  equitable  liens  is  one  of  great 
importance,  and  of  wide  application  in  administering  th& 
remedies  peculiar  t6  equity  jurisprudence,  and  a  brief  ex- 
planation of  the  foundation  and  reasons  of  the  jurisdiction 
is  essential  to  a  full  understanding  of  the  subject.  It  is 
sometimes,  although  unnecessarily  and  even  incorrectly  in 
my  opinion,  spoken  of  as  a  branch  of  implied  trusts;  but 
it  is  more  accurate  to  describe  these  liens  as  analogous  to 
trusts ;  for  although  they  have  some  similar  features,  they 
are  unlike  in  their  essential  elements.  The  common-law 
remedies  upon  all  contracts,  except  those  which  transfer  a 
legal  estate  or  property,  such  as  conveyances  of  land  and 
sales  or  bailments  of  chattels,  are  always  mere  recoveries 
of  money;  the  judgments  are  wholly  personal,  in  ancient 
times  were  enforced  against  the  person  of  the  debtor,  by 
his  imprisonment  until  he  voluntarily  paid  the  amount,  and 
in  modern  times,  against  the  property  generally  of  the  judg- 
ment debtor,  by  means  of  an  execution.  This  species  of 
remedy  is  seldom  granted  by  equity,  and  is  opposed  to  its 
general  theory.  The  remedies  of  equity  are  as  a  class  spe- 
cific. Although  it  is  commonly  said  of  them  that  they  are 
not  in  rem,  because  they  do  not  operate  by  the  inherent 
force  of  the  decree  in  an  equitable  suit  to  change  or  to  trans- 
fer the  title  or  estate  in  controversy,  yet  these  remedies  are, 
as  a  general  rule,  directed  against  some  specific  thing ;  they 
give  or  enforce  a  right  to  or  over  some  particular  identified 
thing,  land,  or  personal  property,  or  a  fund,  rather  than  a 
right  to  recover  a  sum  of  money  generally  out  of  the  de- 
fendant's assets.  Remedies  in  equity,  as  well  as  at  law, 
require  some  primary  right  or  interest  of  the  plaintiff, 
wliich  shall  be  maintained,  enforced,  or  redressed  thereby. 
When  equity  has  jurisdiction  to  enforce  rights  and  obliga- 
tions growing  out  of  an  executory  contract,  this  equitable 

2  Brace  v.  DucbeBS  of  Marlborouyli,  2  P.  Wma.  491i  Ex  parte  EJaott,  11 
Vefl.  617. 


191  THE    EXCLUSIVE    JURISDICTION.  §167 

theory  of  remedies  cannot  be  carried  out,  unless  the  notion 
is  admitted  that  the  contract  creates  some  right  or  interest 
in  or  over  specific  property,  which  the  decree  of  the  court 
can  lay  hold  of,  and  by  means  of  which  the  equitable  relief 
can  be  made  efficient.  The  doctrine  of  "  equitable  liens  " 
supplies  this  necessary  element,  and  it  was  introduced  for 
the  sole  purpose  of  furnishing  a  ground  for  the  specific 
remedies  which  equity  confers,  operating  upon  particular 
identified  property,  instead  of  the  general  pecuniary  recov- 
eries granted  by  courts  of  law.  It  follows,  therefore,  that 
in  a  large  class  of  executory  contracts,  express  or  implied, 
which  the  law  regards  as  creating  no  property  right  nor  in- 
terest analogous  to  property,  but  only  a  mere  personal  right 
and  obligation,  equity  recognizes,  in  addition  to  the  obliga- 
tion, a  peculiar  right  over  the  thing  with  which  the  contract 
deals,  which  it  calls  a  * '  lien, ' '  and  which,  though  not  prop- 
erty, is  analogous  to  property,  and  by  means  of  which  the 
plaintiff  is  enabled  to  follow  the  identical  thing,  and  to 
enforce  the  defendant's  obligation  by  a  remedy  which  oper- 
ates directly  upon  that  thing. 

§  167.  These  equitable  liens  may  be  created  by  express 
executory  contracts  relating  to  specific  property  then  exist- 
ing,^ or  property  to  be  afterwards  acquired;"  and  some- 
times by  implied  contracts,  upon  the  maxim  that  he  who 
seeks  the  aid  of  equity  in  enforcing  some  claim  must  himself 
do  equity.^    The  following  are  some  of  the  important  kinds 

1  Ex  parte  Wills,  1  Ves.  162,  2  Cox,  233;  Card  v.  Jaflfray,  2  Schoales  &  L. 
379;  In  re  Howe,  1  Paige,  125,  19  Am.  Dec.  395;  Chase  v.  Peck,  21  N.  Y.  581; 
Daggett  V.  Rankin,  31  Cal.  321,  326;  Love  v.  Sierra  Nevada  Co.,  32  Cal.  639, 
652,  653,  91  Am.  Dec.  602;  Pinch  v.  Anthony,  8  Allen,  536;  Adams  v. 
Johnson,  41  Miss.  258;  Morrow  v.  Turney,  35  Ala.  131. 

2Holroyd  v,  Marshall  10  H.  L.  Cas.  191;  Wellesley  v.  Wellesley,  4 
Mylne  &  C.  561,  579,  per  Lord  Cottenham;  Metcalfe  v.  Archb.  of  York, 
6  Sim.  224,  1  Mylne  &  C.  547,  556;  Lyde  v.  Minn,  4  Sim.  505,  1  Mylne  & 
K.  683;  Otis  v.  Sill,  8  Barb.  102. 

3  Lake  v.  Gibson,  1  Abr.  Cas.  Eq.  290,  pi,  3 ;  Lake  v.  Craddock,  3  P. 
Wms.  158,  1  Lead.  Cas.  Eq.  177,  179;  Gladstone  v.  Birley,  2  Mer.  403;  Bright 
V.  Boyd,  1  Story,  478,  2  Story,  605;  Miner  v.  Beekman,  50  N.  Y.  337; 
Smith  v.  Drake,  23  N.  J.  Eq.  302;  McLaughlin  v.  Barnum,  31  Md.  425; 
Sale  V.  Crutchfield,  8  Bush,  636. 


§  167  EQUITY   JUKISPRUDENCE.  192 

of  equitable  liens  whicli  are  recognized  as  falling  under  this 
branch  of  the  jurisdiction:  Those  resulting  from  charges 
on  property  by  will  or  by  deed;*  the  grantor's  lien  on  land 
conveyed  for  the  unpaid  price ;°  the  vendee's  lien  for  the 
money  paid  in  a  contract  for  the  purchase  of  land;®' 
the  vendor's  lien  for  the  purchase  price  in  the  same  con- 
tract;'^ the  grantor's  lien  for  unpaid  price  created  by  ex- 
press reservation  in  a  deed  of  conveyance;®  the  lien  in 
favor  of  a  lender,  created  by  a  deposit  of  title  deeds;® 
various  statutory  liens.^  In  addition  to  the  liens  above 
mentioned,  which  belong  to  the  general  equitable  jurispru- 
dence, the  legislation  of  many  states  has  created  or  allowed 
other  liens,  which  often  come  within  the  equity  jurisdiction, 
in  respect,  at  least,  to  their  means  of  enforcement.     The 

4  King  V.  Denison,  1  Ves.  &  B.  272,  276;  Hill  v.  Bishop  of  London,  1  Atk. 
620;  Craig  v.  Leslie,  3  Wheat.  582;  Gardner  v.  Gardner,  3  Mason,  178. 

BMackreth  v.  Symmons,  15  Ves.  329,  1  Lead.  Cas.  Eq.  289;  Blackburn 
V.  Gregson,  1  Brown  Ch.  420;  Rose  v.  Watson,  10  H.  L.  Cas.  672;  Smith  v. 
Evans,  28  Beav.  59.  This  lien  is  established  in  a  large  number  of  the 
states,  but  not  in  all. 

eCator  V.  Earl  of  Pembroke,  1  Brown  Ch.  301;  Rose  v.  Watson,  10  H.  L. 
Cas.  672;  Wytlies  v.  Lee,  3  Drew.  396;  Lane  v.  Ludlow,  6  Paige,  316,  note; 
Chase  v.  Peck,  21  N.  Y.  585;  Wickman  v.  Robinson,  14  Wis.  494,  80  Am. 
Dec.  789;   Stewart  v.  Wood,  63  Mo.  252;  Willis  v,  Searcy,  49  Ala.  222. 

7  Smith  V.  Hibbard,  Dick.  730;  Smith  v.  Evans,  28  Beav.  59;  Haughwout 
V.  Murphy,  22  N.  J.  Eq.  531;  Hall  v.  Jones,  21  Md.  439;  Yancy  v.  Mauck, 
15  Gratt.  300;  Hill  v.  Grigsby,  32  Cal.  55;  Smith  v.  Rowland,  13  Kan. 
245. 

8  This  species  of  lien,  peculiar  to  the  United  States,  is  fully  established  in 
several  of  the  states:  Heist  v.  Baker,  49  Pa.  St.  9;  Carpenter  v.  Mitchell- 
64  111.  126;  Markoe  v.  Andras,  67  111.  34;  Davis  v.  Hamilton,  50  Miss.  213; 
Stratton  v.  Gold,  40  Miss.  781;  White  v.  Downs,  40  Tex.  226;  King  v.  Young 
Men's  Ass'n,  1  Woods,  386. 

©This  lien  is  very  common  in  England,  and  has  been  recognized  in  some 
of  the  states:  Russell  v.  Russell,  1  Brown  Ch.  269;  Ex  parte  Hooper,  1 
Mer.  7;  Parker  v.  Housefield,  2  Mylne  &  K.  419;  Whitbread  v.  Jordan,  1 
Younge  &  C.  303. 

(a)  The  text  is  cited  in  Stults  v.  cashire  Fire  Ins.  Co.,  138  Cal.  257, 
Brown,  112  Ind.  370,  2  Am.  St.  Rep.  71  Pac.  334  (action  to  enforce  a 
190,  14  N.  E.  230.  judgment  lien  against  property  of  de- 

(b)  The  text  is  cited   in  Hibcrnia  cedent). 
Sav.    4    L.    Soc.    v.    Ivondon    A    Lan- 


193  THE   EXCLUSIVE   JURISDICTION.  §  168 

so-called  **  nieclianics'  liens  "  may  be  taken  as  the  type  and 
illustration  of  this  class.'' 

§  168.  Equitable  Estate  or  Interest  Arising  from  an  Assign- 
ment of  Things  in  Action,  Possibilities,  Contingencies,  or  Ex- 
pectancies, and  from  an  Equitable  Assignment  of  a  Fund. —  By 
the  ancient  common  law,  things  in  action,  possibilities,  ex- 
pectancies, and  the  like,  were  not  assignable;  an  assignee 
thereof  acquired  no  right  which  was  recognized  by  courts 
of  law.  Equity,  however,  has  always  held  that  the  assign- 
ment of  a  thing  in  action  for  a  valuable  consideration 
should  be  enforced  at  the  suit  of  the  assignee ;  and  has  also 
given  effect  to  assignments  of  every  kind  of  future  and 
contingent  interests  and  possibilities  in  real  and  personal 
property,  when  made  upon  a  valuable  consideration.^  *  As 
soon  as  the  assigned  expectancy  or  possibility  has  fallen 
into  possession,  the  assignment  will  be  enforced.^  It  fol- 
lowed, therefore,  that  the  assignee  of  a  thing  in  action  ac- 
quired at  once  an  equitable  ownership  therein,  as  far  as  it 
is  possible  to  predicate  property  or  ownership  of  such  a 
species  of  right;  while  the  assignee  of  an  expectancy,  possi- 
bility, or  contingency  acquired  at  once  a  present  equitable 
right  over  the  future  proceeds  of  the  expectancy,  possi- 
bility, or  contingency,  which  was  of  such  a  certain  and  fixed 
nature  that  it  was  sure  to  ripen  into  an  ordinary  equitable 
property  right  over  those  proceeds,  as  soon  as  they  came 
into  existence  by  a  transformation  of  the  possibility  or  con- 
tingency into  an  interest  in  possession.     There  was  an 

iWarmstrey  v.  Lady  Tanfield,  1  Ch.  Rep,  16;  Wright  v.  Wright,  1 
Ves,  Sen.  411;  Hobson  v.  Trevor,  2  P.  Wms.  191;  Bennett  v.  Cooper,  S 
Beav.  252;  Lindsay  v,  Gibbs,  22  Beav.  522;  Spragg  v.  Binkes,  5  Ves.  588; 
Stokes  V.  Holden,  1  Keen,  152,  153;  Jewson  v.  Moulson,  2  Atk.  421. 

2  Holroyd  v.  Marshall,  10  H.  L.  Gas.  191. 

(c)  The  text  is  cited  in  Gilchrist  (a)  The  text  is  cited  to  this  effect 

V.  Helena  Hot  Springs  &  Smelter  R.  in  In  re  Garcelon,    104  Cal.  570,  38 

Co.,   58   Fed.   708,   710,   holding  that  Pac.   414,   32  L.   R.  A.   595,   43   Am. 

equity    has    jurisdiction    to    enforce  St.  Rep.  134;  Hale  v.  Hollon,  14  Tex. 

statutory  liens  when  the  statute  it-  Civ.  App.  96,  35  S.  W.  843,  36  S.  W. 

self  provides  no  method  of  enforce-  288. 
ment. 

Vol.  I ---13 


§  169  EQUITY   JURISPRUDENCE.  194 

equitable  ownership  or  property  in  abeyance,  so  to  speak, 
which  finally  changed  into  an  absolute  property  upon  the 
happening  of  the  future  event.  Equity  permitted  the  crea- 
tion and  transfer  of  such  an  ownership.''  At  an  early  day, 
this  species  of  equitable  ownership  arising  from  assign- 
ments prohibited  by  the  common  law  was  very  important, 
and  was  the  occasion  of  an  extensive  branch  of  the  equitable 
jurisdiction.  This  special  jurisdiction  has,  however,  been 
greatly  curtailed.  Modern  statutes,  both  in  England  and- 
in  the  American  states,  permit,  with  certain  well-defined 
exceptions,  things  in  action,  possibilities,  expectancies,  and 
contingencies  to  be  assigned,  and  the  assignee  to  sue  there- 
upon in  his  own  name.  As  far  as  this  legislation  has  gone, 
it  has,  in  effect,  turned  the  equitable  right  or  ownership  of 
the  assignee  into  a  legal  one,  and  has  thus  removed  the  very 
foundation  of  the  equitable  jurisdiction  over  the  subject- 
matter.  The  jurisdiction  is  therefore  abrogated,  except  so 
far  as  it  is  preserved  by  the  operation  of  the  general  prin- 
ciple, that  where  the  jurisdiction  of  equity  has  been  estab- 
lished over  any  given  subject,  it  is  not  abolished  by  subse- 
quent statutes  conferring  jurisdiction  over  the  same  subject 
upon  the  courts  of  law.  Whatever  may  be  the  effect  of 
these  statutes  in  abridging,  or  rather  in  removing  occasion 
for,  the  jurisdiction  of  equity,  it  is  plain  that  the  jurisdic- 
tion must  still  exist  in  the  cases  where  a  thing  in  action  or 
demand  purely  equitable  in  its  nature  is  assigned,  and 
where  the  assignment  itself  is  equitable, —  that  is,  does  not 
operate  as  an  assignment  at  law, —  and  where  any  species 
of  possibility  or  expectancy  not  within  the  scope  of  the 
statutes  is  transferred.*' 

§  169.  Among  these  cases  which  are  untouched  by  the 
legislation,  and  over  which  the  exclusive  jurisdiction  of 
equity  still  continues  unabridged,  is  the  equitable  assign- 
ment of  a  specific  fund  which  is  in  the  hands  of  a  third 

(b)  Thie  text  is  quoted  in  Stott  v.  (c)  The  text  is  quoted  in  Stott  v. 

Francy,    20    Oreg.    410,    23    Am.    St.       Franey,  20  Oreg.  410,  23  Am.  St.  Rep. 
Rep.  132,  26  Pac.  271.  132,  26  Pac.  271. 


195  THE    EXCLUSIVE    JURISDICTION.  §  170 

person,  an  assignment  which  does  not  operate  at  law,  and 
therefore  creates  no  legal  rights  of  property  in  the  assignee. 
If  A  has  a  specific  fund  in  the  hands  of  B,  or  in  other  words, 
if  B  is  a  depositary  or  otherwise  holds  a  specific  sum  of 
money  which  he  is  bound  to  pay  to  A,  and  if  A  agrees  with 
C  that  the  money  shall  be  paid  to  C,  or  assigns  it  to  C,  or 
gives  to  C  an  order  upon  B  for  it,  the  agreement,  assign- 
ment, or  order  creates  an  equitable  ownership  of  the  fund 
in  the  assignee  C,  so  that  he  can  recover  it  by  a  suit  in 
equity,  and  it  is  not  necessary  that  B  should  consent  or 
promise  to  hold  it  for  or  pay  it  to  such  assignee.^  It  is 
not  necessary  that  the  entire  debt  or  fund  should  be  thus 
assigned;  the  same  doctrine  applies  to  the  assignment  of  a 
definite  portion  of  it.^  * 

§  170.  Exclusively  Equitable  Remedies. —  Having  thus  ex- 
plained the  equitable  primary  rights,  estates,  interests,  and 
charges  in  and  upon  property  over  which  the  exclusive 
jurisdiction  of  equity  extends,  I  now  proceed  to  enumerate 
the  remedies  which  are  wholly  equitable,  administered  by 
courts  of  equity  alone,  and  which  therefore  constitute  the 
other  department  of  the  exclusive  jurisdiction.  There  are 
certain  general  qualities  belonging  to  all  these  remedies, 

1  Rodick  V.  Gandell,  1  De  Gex,  M,  &  G.  763;  Ex  parte  Imbert,  1  De  Gex  & 
J.  152;  Jones  v.  Farrell,  1  De  Gex  &  J.  208;  Gurnell  v.  Gardner,  9  Jur., 
N.  S.,  1220;  Ex  parte  South,  3  Swanst.  393;  Burn  v.  Carvalho,  4  Mylne  &  C. 
702;  Lett  v.  Morris,  4  Sim.  607;  Watson  v.  Duke  of  Wellington,  1  Russ.  & 
M.  605;  Yeates  v.  Groves,  1  Ves.  281;.  Lepard  v.  Vernon,  2  Ves.  &  B.  51;  Ex 
parte  Alderson,  1  Madd.  53;  Collyer  v.  Fallon,  1  Turn.  &  R.  470,  475; 
Adams  v.  Claxon,  6  Ves,  230;  Row  v.  Dawson,  1  Ves.  Sen.  331;  Freddy 
V.  Rose,  3  Mer.  86,  102;  Ex  parte  Carruthers,  3  De  Gex  &  S.  570;  Mal- 
colm V.  Scott,  3  Hare,  39;  Mandeville  v.  Welch,  5  Wheat.  277,  286;  Tiernaa 
V.  Jackson,  5  Pet.  598;  Gibson  v.  Finley,  4  Md.  Ch.  75;  Wheatley  v.  Strobe, 
12  Cal.  92,  98,  73  Am.  Dec.  522;  Walker  v.  Mauro,  18  Mo.  564;  Shaver 
V.  Western  Union  Tel.  Co.,  57  N.  Y.  459,  464. 

2  Watson  V.  Duke  of  Wellington,  1  Russ.  &  M.  602,  605,  per  Sir  John. 
Leach;  Lett  v.  Morris,  4  Sim.  607;  Smith  v.  Everett,  4  Brown  Ch.  64 ^ 
Morton  v.  Naylor,  1  Hill,  583;  Grain  v.  Aldrieh,  38  Cal.  514,  99  Am.  Dec 
423. 

(a)  The  text  is  cited  and  followed  v.  A.  &  C.  Wright  Co.,  117  Ga.  81,  4» 
in  The  Elmbank,  72  Fed.  610;  Rivers       S.  E.  499. 


§  170  EQUITY   JURISPRUDENCE.  196 

■which  should  be  clearly  and  correctly  understood;  other- 
wise our  notions  of  the  remedial  functions  of  equity  will  be 
partial,  confused,  and  even  erroneous.  1.  These  exclusive 
remedies  may  be  granted  in  order  to  protect,  maintain,  or 
enforce  primary  rights,  estates,  or  interests  which  are  legal 
as  well  as  those  which  are  equitable:  they  are  not  admin- 
istered in  behalf  of  equitable  substantive  rights  alone.  As 
illustrations,  an  injunction  is  often  given  to  prevent  the  in- 
vasion of  a  legal  ownership  or  interest,  a  decree  quieting 
title  is  often  rendered  to  establish  an  existing  legal  estate, 
and  the  like.  And  in  many  instances  where  the  existing 
primary  right,  estate,  or  interest  of  the  complainant  is  equi- 
table, the  very  object  and  effect  of  the  remedy  is  to  clothe 
him  with  the  corresponding  legal  right,  estate,  or  interest; 
as,  for  example,  when  the  beneficiary  under  a  constructive 
trust,  or  the  vendee  under  a  contract  for  the  sale  of  land, 
obtains  a  decree  directing  a  conveyance  of  the  legal  title. 
2.  Although  it  was  said  in  the  earliest  days  of  the  juris- 
diction of  chancery,  and  has  been  constantly  repeated  by 
writers  and  judges  to  the  present  time,  that  equitable  reme- 
dies act  wholly  on  the  person,  in  personam,  and  not  upon 
property,  in  rem,  the  exact  meaning  and  limits  of  this  rule 
must  be  accurately  understood,  or  else  it  will  be  very  mis- 
leading, and  will  entirely  misrepresent  the  theory  of  the 
equity  remedial  system.  It  has  no  signijScance  beyond  the 
fact  that,  according  to  the  practice  adopted  by  the  court  of 
chancery  from  prudential  motives,  the  decrees  of  the  court 
did  not,  so  to  speak,  execute  themselves  by  divesting  the  de- 
fendant of  estates  or  interests,  and  vesting  the  same  in  the 
plaintiff;  defendants  were  ordered  to  do  specified  acts,  such 
as  the  execution  of  conveyances,  the  delivery  up  and  cancel- 
lation of  instruments,  and  the  like,  which  would,  when  done, 
establish,  perfect,  and  secure  the  rights  adjudged  to  be  held 
by  the  plainti  ffs ;  the  decree  that  a  conveyance  of  land  should 
be  made  by  the  defendant  to  the  plaintiff  did  not  of  itself 
operate  as  a  title,  did  not  of  itself  transfer  the  estate  to  the 
^plaintiff;  nor  was  an  officer  of  the  court  authorized  to  exe- 


197  THE   EXCLUSIVE   JURISDICTION.  §  170' 

cute  the  conveyance ;  the  defendant  himself  was  ordered  to 
do  the  act,  and  he  alone  could  perform  it ;  his  refusal  simply 
brought  on  him  the  punishment  of  fine  and  imprisonment 
until  he  consented  to  obey.  This  ancient  quality  in  the 
operation  of  equitable  remedies  has  been  greatly  modified 
by  various  statutes  in  the  United  States,  which,  in  some 
instances,  provide  that  a  decree  establishing  an  estate,  in- 
terest or  right  of  property  in  the  plaintiff  shall  execute^ 
itself,  shall  be  of  itself  a  muniment  of  title,  by  divesting 
the  defendant  of  the  interest  and  vesting  the  same  in  the- 
plaintiff,  without  any  conveyance  or  other  instrument  of 
transfer.  The  decree  alone,  being  on  record,  operates  as  a 
sufficient  security  of  the  plaintiff's  rights  as  adjudged.  In 
other  instances,  an  officer  of  the  court,  commissioner,  mas- 
ter, or  referee  is  authorized  to  carry  out  the  provisions  of 
the  decree  by  executing  the  necessary  instruments,  which 
are  thereupon  the  plaintiff's  muniments  of  title,  with  the 
same  effect  as  though  they  had  been  executed  by  the  defend- 
ant himself.  Finally,  in  many  instances,  the  decree  must,, 
from  the  nature  of  the  remedy,—  e.  g.,  an  injunction,—  act 
directly  against  the  defendant  personally,  and  order  him  to 
do  or  to  refrain  from  certain  acts.  The  maxim  referred  to 
has  therefore  a  very  limited  application.  When  we  turn 
from  this  mere  external  manner  in  which  equitable  reme- 
dies were  enforced  according  to  the  original  chancery  pro- 
cedure to  the  essential,  and  so  to  speak  internal,  nature  and 
qualities  of  the  remedies  themselves,  instead  of  their  being 
merely  personal,  it  is  one  of  the  distinctive  and  central  prin- 
ciples of  the  equity  remedial  system  that  it  deals  with  prop- 
erty rights,—  estates,  interests,  liens,—  rather  than  with  the 
mere  personal  rights  and  obligations  of  the  litigant  parties. 
This  tendency  of  equity  to  base  its  remedies  upon  the  rights 
of  property,  in  their  various  grades,  from  complete  estates 
to  liens  or  charges,  is  exhibited  in  the  clearest  manner  in 
all  its  suits  brought  to  enforce  the  rights  and  duties  grow- 
ing out  of  contracts.  Although  the  contract  is  executory, 
even  though  it  stipulates  only  with  respect  to  things  not 


§  170  EQUITY    JURISPRUDENCE.  198 

yet  in  existence,—  things  to  be  acquired  in  future,—  the 
remedial  right  is  worked  out  by  conceiving  of  a  present 
ownership,  interest,  lien,  or  charge,  as  arising  from  the  ex- 
ecutory provisions,  or  a  present  possibility  which  will  ripen 
into  such  an  interest,  and  by  establishing  this  proprietary 
right,  protecting  and  enforcing  it.  The  decree,  with  a  few 
exceptional  cases,  passes  over  the  personal  rights  of  the 
plaintiff,  and  the  personal  obligations  of  the  defendant, 
deals  with  rights  or  interests  in  property,  and  shapes  its 
relief  by  conferring  rights,  or  imposing  duties  growing 
out  of  or  connected  with  some  grade  of  property.  Even 
when  the  executory  contract  creates  what  at  law  would  be 
a  debt,  and  when  the  recovery  at  law  would  be  a  general 
pecuniary  judgment,  the  equitable  remedy  views  this  debt  as 
an  existing  fund,  and  awards  its  relief  in  the  form  of  an 
ownership  of  or  lien  upon  that  fund.  A  general  pecuniary 
judgment  to  be  recovered  from  the  debtor's  assets  at  large 
—  as  an  award  of  damages  —  is  only  gi-anted  by  a  court  of 
equity  under  very  exceptional  circumstances.*  3.  Another 
quality  of  the  distinctively  equitable  remedies,  connected 
with  and  perhaps  growing  out  of  the  one  last  mentioned,  is 
their  specific  character,  both  with  respect  to  substance  and 
form.  Except  in  actions  to  recover  possession  of  land  or 
of  chattels  (''action  of  right,**  **  ejectment,'*  or  ''re- 
plevin"), the  legal  remedies  by  action  are  all  general  re- 
coveries of  specified  sums  of  money,  which  may  be  collected 
by  execution  out  of  any  property  of  the  debtor  not  exempted. 
The  equitable  remedies,  with  a  few  exceptions,  are  specific ; 
deal  with  specific  things,  land,  chattels,  choses  in  actions, 
funds;  establish  specific  rights,  estates,  interests,  liens,  and 

1  The  same  conception  is  shown  in  the  jurisdiction  which  equity  exer- 
cises over  the  persons  of  those  who  are  non  sui  juris,  such  as  infants,  luna- 
tics, etc.  Although  the  jurisdiction,  when  existing,  extends  over  the  per- 
sons, the  fact  upon  which  it  rests,  and  which  is  the  necessary  occasion  for  its 
exercise,  is  the  existence  of  property  belonging  to  the  person.  An  infant, 
for  example,  cannot  be  made  a  ward  of  the  court  merely  because  he  is  an 
infant,  but  because  he  is  an  infant  possessing  property  which  tlie  court  can 
Administer. 


199  THE   EXCLUSIVE    JURISDICTION.  §  170 

charges  in  or  over  these  things ;  and  direct  specific  acts  to  be 
done  or  omitted  with  respect  to  these  things,  for  the  purpose 
of  enforcing  the  rights  and  duties  thus  declared.  Even  when 
the  controversy  is  concerning  pecuniary  claims  and  obliga- 
tions, and  the  final  relief  is  wholly  pecuniary,  the  equitable 
remedies  are  administered  by  regarding  the  subject-matter 
as  a  specific  fund,  and  by  adjudging  such  fund  to  its  single 
owner,  or  by  apportioning  it  among  the  several  claimants. 
It  is  the  distinctive  feature  of  the  system,  which  gives  it  a 
superior  efficacy  over  the  legal  methods,  that  it  ascertains 
a  rightful  claimant's  interest  in  or  over  a  specific  thing, 
land,  chattels,  choses  in  action,  debts,  and  even  money  in 
the  form  of  a  fund,  and  follows  it  through  the  hands  of  suc- 
cessive possessors  as  long  as  it  can  be  identified.  The  two 
qualities  which  I  have  thus  described,  that  equitable  reme- 
dies deal  with  property  rights  rather  than  with  personal 
rights  and  obligations,  and  that  they  are  specific  in  their 
nature,  are  the  peculiar  and  important  features  of  the  sys- 
tem, and  give  it  the  power  of  expansion  and  of  application 
to  an  unlimited  variety  of  circumstances^  which  enables 
equity  to  keep  abreast  with  the  progress  and  changing  wants 
of  society.  4.  Another  quality  of  equitable  remedies  is 
their  unlimited  variety  of  form.  It  is  absolutely  impossible 
to  enumerate  all  the  special  kinds  of  relief  which  may  be 
granted,  or  to  place  any  bounds  to  the  power  of  the  courts 
in  shaping  the  relief  in  accordance  with  the  circumstances 
of  particular  cases.  As  the  nature  and  incidents  of  pro- 
prietary rights  and  interests,  and  of  the  circumstances  at- 
tending them,  and  of  the  relations  arising  from  them,  are 
practically  unlimited,  so  are  the  kinds  and  forms  of  specific 
relief  applicable  to  these  circumstances  and  relations.*  The 
ordinary  remedies,  however,  which  are  administered  by 
equity,  those  which  are  appropriate  to  the  circumstances 
and  relations  most  frequently  arising,  are  well  ascertained 
and  clearly  defined,  both  as  to  their  form  and  nature.    Cer- 

(a)   The  text  is  quoted  in  Sharon  v.  Tucker,  144  U.  S.  542,  12  Sup,  Ct. 
720,  by  Field,  J. 


§  171  EQUITY   JURISPRUDENCE.  200 

tain  species  of  these  belong  to  the  exclusive  jurisdiction^ 
and  the  doctrines  and  rules  which  regulate  their  adminis- 
tration constitute  a  large  portion  of  the  equity  jurisdiction. 
I  shall  complete  my  survey  of  the  exclusive  jurisdiction  by 
enumerating  these  kinds  of  remedies  which  are  commonly 
administered,  and  which  are  susceptible  of  a  definite  classi- 
fication and  arrangement.  They  may  be  grouped  according 
to  their  nature  and  objects  in  the  following  classes. 

§  171.  1.  The  first  class  embraces  those  remedies  which 
are  wholly  ancillary  or  provisional ;  which  do  not  either 
directly  or  indirectly  affect  the  nature  of  any  primary 
right,  but  are  simply  means  and  instruments  by  which 
primary  rights  may  be  more  efficiently  preserved,  pro- 
tected, and  enforced  in  judicial  proceedings.  This  class 
includes  the  ordinary  preventive  injunction,  receivers,  and 
interpleader.*  2.  The  second  class  embraces  those  remedies 
which  operate  indirectly  to  establish  or  protect  primary 
rights,  either  legal  or  equitable.  They  do  not  expressly  nor 
directly  declare,  establish,  and  enforce  the  ultimate  right, 
estate,  or  interest  of  the  complaining  party;  but  their  ob- 
ject is  to  perfect  and  complete  the  means  by  which  such 
right,  estate,  or  interest  is  evidenced  or  secured,—  the  title, 
—  or  to  remove  obstacles  which  hinder  the  enjoyment  of 
such  right."  They  are  therefore  in  their  nature  not  final 
remedies,  but  are  often  granted  as  preliminary  to  the  final 
relief  by  which  the  party's  primary  right,  estate,  or  interest 
is  established  and  enforced.  The  important  remedies  con- 
tained in  this  class  are  re-execution  of  instruments,  reforma- 
tion of  instruments,''  surrender  or  discharge  of  instruments, 

(a)  The   text    Ib    cited    in   Vila   v.  (b)  Quoted    in    Sharon    v.    Tucker, 

Grand  Island   E.  L.,  I.  &  C.   S.   Co.  144   U.  S.  542,   12   Sup.  Ct.   720,  by 

(Nebr.),    97    N.    W.    613     (ancillary  Field,   J.,   a   suit   to   establish,   as   a 

character  of  the  remedy  of  appoint-  matter   of    record,   a   title   depending 

ing  a   receiver)  ;    Freer   v.   Davis,   52  on  prescription. 

W.  Va.  1,  43  S.  E.  164,  94  Am.  St.  (c)  The  text  is  cited  in  Bickley  v. 

Rep.  895,  59  L.  R.  A.  556    (ancillary  Commercial    Bank    of    Columbia,    43 

character  of  the  remedy  of  injunction  S.  C.  528,  21  S.  E.  886. 
to  restrain  trespass). 


201  THE    EXCLUSIVE    JUKISDICTION.  §  171 

and  cancellation  or  rescission.  3.  The  third  class  embraces 
those  remedies  by  which  a  primary  right  of  property,  estate, 
or  interest  is  directly  declared,  established,  acquired  or  en- 
forced ;  and  they  often  consist  in  the  conveyance  by  defend- 
ant of  a  legal  estate,  corresponding  to  the  complainant's 
equitable  title.  These  remedies  deal  directly  with  the  plain- 
tiff's right  of  property,  and  grant  to  him  the  final  relief 
which  he  needs,  by  establishing  and  enforcing  such  right. 
The  particular  remedies  properly  belonging  to  this  class 
may  assume  an  almost  unlimited  variety  of  forms,  since 
their  form  depends  upon  and  corresponds  to  the  nature 
of  the  primary  right  to  be  established,  and  of  the  subject- 
matter  over  which  that  right  extends ;  it  is  chiefly  in  its  rela- 
tion with  this  class  that  the  peculiarly  elastic  quality  of  the 
equity  remedial  system  is  found.  The  remedies  belonging 
to  the  class  may,  for  purposes  of  clearer  description,  be 
again  subdivided  into  three  principal  groups.  Some  are 
simply  declarative;  that  is,  their  main  and  direct  object  is 
to  declare,  confirm,  and  establish  the  right,  title,  interest, 
or  estate  of  the  plaintiff,  whether  legal  or  equitable;  they 
are  usually  granted  in  combination  with  others,  and  often 
need  other  kinds  of  relief  as  a  preliminary  step  to  making 
them  efficient;  as,  for  example,  a  preliminary  reformation, 
re-execution,  or  cancellation.^  Others  are  restorative,  or 
those  by  which  the  plaintiff  is  restored  to  the  full  enjoyment 
of  the  right,  interest,  or  estate  to  which  he  is  entitled,  but 
the  use  and  enjoyment  of  which  has  been  hindered,  inter- 
fered with,  prevented,  or  withheld  by  the  wrongdoer.  These 
also  are  often  granted  in  combination  with  other  kinds 
of  relief,  and  frequently  need  some  other  preliminary  equi- 
table remedy,  such  as  cancellation  or  reformation,  to  remove 
a  legal  obstacle  to  the  full  enjoyment  of  the  plaintiff's 
right,  and  to  render  them  efficient  in  restoring  him  to  that 

(d)  This  paragraph  of  the  text  i3  ing  the  existence  of  a  lost  instru- 
cited  in  Bohart  v.  Chamberlain,  99  ment;  Sharon  v.  Tucker,  144  U.  S. 
Mo.  622,  13  S.  W.  85,  decree  establish-       542,  12  Sup.  Ct.  720. 


§  171  EQUITY   JUEISPRUDENCB.  202 

enjojTnent.  Others  are  remedies  of  specific  performance, 
or  those  by  which  the  party  violating  his  primary  duty  is 
compelled  to  do  the  very  acts  which  his  duty  and  the  plain- 
tiff's corresponding  primary  right  require  from  him.  The 
following  particular  instances  are  examples  of  the  rem.edies 
belonging  to  this  general  class:  Establishing  and  quieting 
title  and  possession  of  land;  establishing  some  general  right 
C  bills  of  peace  ") ;  establishing  wills  ;^  construing  wills 
and  determining  the  rights  under  them  of  devisees  and  lega- 
tees/ establishing  disputed  boundaries;  redeeming  lands  or 
chattels  from  mortgages,  pledges,  and  thus  establishing  the 
plaintiff's  right  of  property  and  possession  therein;  strict 
foreclosure  of  mortgages ;  specific  performance  of  contracts 
and  of  other  similar  obligations;  performance  of  duties 
arising  from  implied  trusts,  resulting  or  constructive,  by 
compelling  a  conveyance  of  the  legal  title ;  performance  of 
the  duties  arising  from  express  trusts,  by  compelling  the 
trustee  to  fulfill  the  trust  according  to  its  terms;  and  nu- 
merous other  cases  of  the  same  nature.  4.  A  fourth  class 
embraces  those  remedies  which  establish  and  enforce  liens 
and  charges  on  property,  rather  than  rights  and  interests 
in  property,  either  by  means  of  a  judicial  sale  of  the  prop- 
erty itself  which  is  affected  by  the  lien  and  a  distribution 
of  its  proceeds,  or  by  means  of  a  sequestration  of  the  prop- 
erty, and  an  appropriation  of  its  rents,  profits,  and  income, 
until  they  satisfy  the  claim  secured  by  the  lien.*^  The  im- 
portant examples  are:  The  foreclosure  of  mortgages  of 
land  or  of  chattels,  and  of  pledges,  by  a  sale  and  applica- 
tion of  the  proceeds;  the  similar  enforcement  of  grantors' 

(e)  TJiis  paragraph  of  the  text  was  (f)  Tlie  text  is  cited   in  Matthews 

cited  in  In  re  Cilley,  58  Fed.  977,  986,  v.  Tyree,  53  W.  Va.  298,  44  S.  E.  520. 

where,   however,   it  was   held   that  a  (g)  The  text  ia  quoted   in   Knapp, 

proceeding   to   establish    a   will    was  Stout   &    Co.   v.   McCaffrey,    178    111. 

not   a   "suit   at  common   law   or   in  107,  69  Am.  St.  Rep.  290,  52  N.  E. 

equity"   within   the   meaning   of  the  898     (enforcing    lien     of     bailee     in 

statute     authorizing     removal     to     a  equity), 
federal    court   on    the   ground    of   di« 
Terse  citizenship. 


203  THE    EXCLUSIVE    JURISDICTION.  §  172 

or  vendees'  liens  on  land;  the  enforcement  of  meclianics' 
and  other  like  statutory  liens  ;^  the  enforcement  of  charges 
created  by  will  and  other  equitable  liens;  creditors'  suits  to 
enforce  the  equitable  liens  of  judgment  creditors  and  other 
similar  liens  on  the  assets  of  debtors,  and  the  like.  5.  A  fifth 
class  contains  certain  special  remedies  which  do  not  belong 
to  the  original  jurisdiction  of  chancery,  but  are  wholly  the 
results  of  statutory  legislation.  Among  them  are  suits  to 
set  aside  wills;  suits  to  establish  or  to  destroy  some  kinds 
of  official  status,  as  proceedings  against  corporations  and 
their  officers,  brought  by  stockholders  or  creditors  or  offi- 
cials on  behalf  of  the  state,  to  dissolve  and  wind  up  the  cor- 
porations, and  to  remove  or  institute  corporation  officers, 
and  the  like ;  and  suits  for  divorce  absolute  and  limited,  and 
for  alimony,  in  many  of  the  states.  6.  The  last  class  com- 
prises proceedings  in  which  jurisdiction  is  exercised  over 
persons  not  sui  juris, —  infants,  persons  non  compotes 
mentis,  confirmed  drunkards.  The  foregoing  six  general 
classes  include  all  the  important  species,  and  most  of  the 
particular  instances  of  the  remedies  which  belong  to  the 
exclusive  jurisdiction,  those  which  are  administered  alone 
by  courts  of  equity. 

§  172.  When,  under  what  circumstances,  for  what  pur- 
poses, to  what  extent,  and  with  what  limitations  and  restric- 
tions these  remedies,  or  any  one  of  them,  will  actually  be 
granted  to  and  against  litigant  parties,  are  questions  which 
do  not  belong  to  a  statement  of  the  equitable  jurisdiction; 
they  belong  alone  to  the  equity  jurisprudence,  and  their  an- 
swer involves,  to  a  large  extent,  a  discussion  of  its  doctrines 
and  rules.  The  administration  of  those  purely  equitable 
remedies  is  the  judicial  function  which  marks  and  fixes  one 
branch  of  the  exclusive  jurisdiction;  the  determination  of 
the  scope  and  extent  of  that  jurisdiction  only  requires  a 
knowledge  of  what  these  remedies  are,  and  not  of  the  par- 

(h)  The  text  is  cited  in  Hibemia  257,  71  Pac.  334  (jurisdiction  to  en- 
Savings  &  Loan  Society  v.  London  &  force  judgment  lien  against  propertj 
Lancashire    Fire    Ina.    C!o.,    138    CaL       of  decedent). 


§  173  EQUITY    JUEISPRUDENCB.  204 

ticular  circumstances  under  which  they  will  be  conferred. 
In  a  word,  all  cases  in  which  the  purely  equitable  remedies 
are  granted  fall  within  the  exclusive  jurisdiction  of  equity ; 
what  those  cases  are  constitutes  a  large  portion  of  the 
equity  jurisprudence,  and  is  ascertained  only  by  an  applica- 
tion of  its  principles,  doctrines,  and  rules.* 


SECTION  m. 

THE   CONCURRENT  JURISDICTION. 

ANALYSIS. 

IS  173,174.  What   embraced   in   the   concurrent  jurisdiction;    inadequacy  of 

legal  remedies  defined. 
§  175.  The  remedies  given  must  be  legal  in  their  nature. 
{§  176-179.  General  principle;   when  no  concurrent  jurisdiction  exists. 
IS   177,  178.  Examples  of  such  cases. 

§  179.  Where  a  law  court  has  first  taken  cognizance  of  a  case. 

§   180.  General  principle;  where  concurrent  jurisdiction  does  exist. 

S   181.  Rule  first.     Where  equity  has  jurisdiction  for  any  partial  pur» 

pose,  it  may  retain  the  cause  for  all  purposes. 
'I  182.  Rule  second.     Where  equity  originally  had  jurisdiction,  and  tha 
law  subsequently  acquires  jurisdiction  over  the  same  matter, 
the  equity  jurisdiction  still  continues. 
8  183.  Effect  of  the  reformed  procedure  upon  the  equity  jurisdiction. 
fS  184-189.  Enumeration  of  the  principal  matters  over  which  the  concurrent 
jurisdiction  ordinarily  extends. 
§  185.  Suits  for  the  recovery  of  lands  and  of  chattels. 
II  186-188.  Suits  for  pecuniary  recoveries. 

§   188.  Suits  arising  from  accident,  mistake,  or  fraud. 
I  189.  Other  special  cases. 

§  173.  Description  and  Test. —  The  Concurrent  Jurisdic- 
tion, as  stated  in  a  former  section  in  this  chapter,  embraces 
all  those  civil  cases  in  which  the  primary  right,  estate,  or 
interest  of  the  complaining  party  sought  to  be  maintained, 
enforced,  or  redressed  is  one  which  is  created  and  is  cog- 
nizable by  the  law,  and  in  which  the  remedy  conferred  is 
also  of  the  same  kind  as  that  administered,  under  the  like 
circumstances,  by  the  courts  of  Jaw.  The  primary  right, 
estate,  title,  or  interest  which  is  the  foundation  of  the  suit 

(a)  The  text  is  cited  in  Brickley  v.  Commercial  Bank  of  Columbia,  43 
B.  C.  528,  21  S.  E.  886. 


205  THE   CONCUERENT   JURISDICTIOIT.  §  173 

must  be  legal,  or  else  the  case  would  belong  to  the  exclusive 
jurisdiction  of  equity;  and  the  law  must,  through  its  judi- 
cial procedure,  give  some  remedy  of  the  same  general  na- 
ture as  that  given  by  equity ;  but  this  legal  remedy  is  not, 
under  the  circumstances,  full,  adequate,  and  complete.    The 
actual  foundation  of  this  concurrent  branch  of  the  equitable 
jurisdiction,  the  essential  principle  to  which  every  instance 
of  its  exercise  must  finally  be  referred,  is  therefore  the  in- 
adequacy, incompleteness,  or  insufficiency  of  the  legal  reme- 
dies which  can  be  granted  by  courts  of  law  to  the  litigant 
parties.    This  inadequacy  or  insufficiency  inheres,  not  in 
the  essential  nature  of  the  relief  itself,  but  generally  in  the 
modes  in  which  the  relief  is  administered  by  courts  of  law, 
the  inflexible  and  often  arbitrary  rules  of  legal  procedure 
concerning  parties  to  actions,  trials,  judgments,  and  the 
like.    Although  the  exclusive  jurisdiction  of  equity  does  not  • 
rest  upon  the  inadequacy  of  legal  remedies  as  its  founda- 
tion, yet,  as  has  already  been  said,  the  rules  which  govern 
its  exercise,  the  doctrines  of  equity  jurisprudence  which 
guide  and  limit  the  court  of  chancery  in  its  decision  of 
causes  falling  within  the  exclusive  jurisdiction,  do  also  de- 
pend in  some  measure  upon  the  insufficiency  and  inade- 
quacy of  the  remedies  granted  by  the  law.    This  inadequacy 
of  legal  remedies,  in  its  relations  with  the  exclusive  juris- 
diction of  equity,  almost  always  exists  in  the  very  nature 
of  the  remedies  themselves.     The  equitable  remedies  are 
different  from  and  superior  to  those  conferred  by  the  law, 
and  for  this  reason  a  court  of  equity  may  interfere  and 
grant  them,  although  the  primary  right,  interest,  or  estate 
of  the  plaintiff  is  legal  in  its  nature,  and  he  might  obtain 
some  remedy  for  the  violation  of  his  right  from  a  court  of 
law.    This  is  not  tme  of  the  concurrent  jurisdiction.    The 
very  definition  of  that  jurisdiction  assumes  that  the  reme- 
dies administered  under  a  given  state  of  circumstances,  by 
equity  and  by  the  law,  are  substantially  the  same, —  re- 
coveries of  money,  or  of  specific  tracts  of  land,  or  of  specific 
chattels.    The  incompleteness  or  insufficiency  of  the  legal 


§  174  EQUITY   JURISPRUDENCE.  206 

remedy  upon  which  the  concurrent  equitable  jurisdiction 
rests  must  therefore  necessarily  exist  in  the  modes  of  legal 
procedure,  its  arbitrary  and  unbending  rules,  its  want  of 
elasticity  and  adaptability  to  circumstances,  and  all  the 
other  incidents  of  legal  methods  which  often  prevent  them 
from  doing  full  justice  to  the  litigant  parties. 

§  174.^  The  cases  coming  within  the  concurrent  jurisdic- 
tion may,  for  purposes  of  convenience  only,  and  not  from 
any  difference  of  principle,  be  arranged  under  two  general 
classes.  The  distinguishing  feature  of  the  first  class  is  the 
act,  event,  or  fact  which  is  the  occasion  of  the  remedial 
right.  It  contains  all  those  cases  in  which  the  primary  right 
violated,  the  estate,  title,  or  interest  to  be  protected,  is  of 
course  legal,  and  the  subject-matter  of  the  suit,  and  the  act^ 
event,  or  fact  which  occasions  the  right  to  a  remedy,  may 
be  brought  within  the  cognizance  of  the  law  courts,  and 
made  the  foundation  of  a  legal  action,  but  in  respect  of 
which  the  whole  system  of  legal  procedure  and  remedies  is 
so  partial  and  insufficient  that  complete  justice  can  only  be 
done  by  means  of  the  equity  jurisdiction.  The  most  import- 
ant acts,  events,  or  facts  which  are  the  occasions  of  reme- 
dial rights,  and  which  thus  permit  or  require  the  interposi- 
tion of  equity  in  the  cases  composing  this  class,  are  fraud, 
mistake,  and  accident.  The  second  class  contains  all  the 
remaining  cases  in  which  the  primary  right  to  be  redressed 
or  protected  is  legal,  and  the  relief  is  of  the  same  kind  as 
that  given  at  law,  but  in  which,  from  the  special  circum- 
stances of  the  case  itself,  or  from  the  inherent  defects  of 
the  legal  procedure,  the  remedy  at  law  is  inadequate,  and 
equity  assumes  jurisdiction,  in  order  to  do  complete  justice. 
As  mere  illustrations  of  this  class  may  be  mentioned  suits 
for  an  accounting,  for  contribution,  and  the  like,  in  which 
both  the  legal  and  the  equitable  remedy  is  a  recovery  of 
money;  suits  for  partition,^  for  admeasurement  of  dower, 

(a)  Cited   with  approval   in  Stock-  (b)  This   paragraph  of  the  text  is 

ton  V.  Anderson,  40  N.  J.  Eq.  488,  4  cited  in  Daniela  v.  Benedict,  50  Fed. 
Atl.  642.  347    (partition). 


207  THE    CONCURRENT    JURISDICTION.  §  175 

and  for  settlement  of  boundaries,  in  which  the  relief  in 
both  courts  is  the  obtaining  possession  of  land;  and  the 
suits  which  may  be  maintained  under  peculiar  circum- 
stances for  the  recovery  of  specific  chattels. 

§  175.  The  Remedies  Legal." —  In  order  that  a  suit  may 
fall  under  the  concurrent  jurisdiction  of  equity,  the  remedy 

—  that  is,  the  substantial  relief  obtained  by  the  decree  — 
must  be  of  the  same  general  nature  as  that  which  would  be 
obtained  by  means  of  an  action  at  law  under  like  circum- 
stances. All  the  general  kinds  of  remedy,  or  final  relief, 
which  are  possible  by  means  of  legal  actions  are  defined 
with  absolute  certainty  and  fixedness.  Omitting  the  par- 
ticular species  of  relief  obtainable  through  certain  writs  or 
special  judicial  proceedings,  such  as  "  mandamus,"  the 
writ  of  ''  prohibition,"  '*  habeas  corpus,"  the  law,  through 
its  actions,  is  confined  to  three  general  kinds  of  remedies, 

—  the  obtaining  possession  of  specific  tracts  of  land,  the 
obtaining  possession  of  specific  chattels,  and  the  recovery 
of  ascertained  sums  of  money,  either  debts  or  damages,  by 
way  of  compensation.  In  every  case,  therefore,  properly 
belonging  to  the  concurrent  jurisdiction  of  equity,  the  final 
and  substantial  relief  granted  by  the  decree  must  be  either 
an  award  of  possession  of  some  piece  of  land,  or  a  delivery 
of  possession  of  some  specific  chattel,  including  written 
instruments,  such  as  deeds,  which  with  this  respect  are  re- 
garded as  chattels,  or  a  pecuniary  recovery.^     While  the 

1  In  respect  to  no  other  topic  connected  with  equity  has  there  been 
Buch  confusion  of  treatment,  and  such  utter  lack  of  any  consistent  principle, 
among  text-writers,  as  in  relation  to  the  matter  of  the  concurrent  jurisdic- 
tion. As  illustrations:  Because  some  purely  legal  rights  and  legal  causes  of 
action  may  be  occasioned  by  fraud,  accident,  or  mistake,  many  text-writers 
have  therefore  placed  fraud,  accident,  and  mistake,  and  everything  per- 
taining to  them,  wholly  within  the  concurrent  jurisdiction  of  equity.  Al- 
though the  primary  right  arising  therefrom  may  be  entirely  equitable,  and 
although  the  remedy  conferred  may  be  one  which  can  be  administered  only 
by   a    court   of    equity,    such    as    reformation,    cancellation,    injimction,    etc., 

(a)  Cited  with  approval  in  State  47  Atl.  456  (jurisdiction  to  decree 
T.  Donegan,  94  Mo.  66,  6  S.  W.  693;  the  transfer  of  written  instruments). 
Bindseil  v.  Smith,  61  N.  J.  Eq.  654, 


§  175  EQUITY   JUKISPEUDENCB.  208 

equitable  relief  must  be  of  the  same  general  nature  as  that 
granted  by  the  law  courts,  it  need  not  be  of  the  same  ex- 
ternal form,  nor  be  accompanied  by  the  same  incidents. 
Thus  where  a  decree  in  equity  awards  to  the  plaintiff,  as  his 
ultimate  relief,  the  possession  of  certain  land,  it  may,  as  a 
preliminary  to  and  basis  of  such  award,  adjudge  his  estate 
and  title  —  in  fee,  for  life,  or  for  years  —  in  and  to  such 
land;  while  the  judgment  in  an  action  of  "  ejectment  " 
simply  awards  the  possession,  without  expressly  adjudicat- 
ing upon  the  estate  or  title.  Also,  in  most  instances  of 
pecuniary  recoveries  in  equity,  the  money  is  regarded  and 
treated  as  a  fund,  which  is  either  awarded  to  the  single 
claimant,  or  is  distributed  among  the  several  claimants  in 
the  shares  to  which  they  are  adjudged  to  be  entitled.  The 
cases  are  very  few  indeed  in  which  a  court  of  equity,  in 
the  same  manner  and  form  as  a  court  of  law,  decrees  the 
payment  to  the  plaintiff  of  a  sum  of  money  merely  as  a 
debt  or  as  compensatory  damages."  Another  important 
element  of  the  concurrent  equitable  jurisdiction  exists  in 
the  marked  difference  between  the  modes  of  procedure  at 
law  and  in  equity  with  reference  to  the  actual  rendition  of 
final  judgment  and  the  form  of  such  judgment.  The  judg- 
ment in  an  action  at  law,  unaltered  by  modern  statutes,  is 
most  truly  a  yea,  yea,  or  a  nay,  nay;  that  is,  it  is  a  single, 
undivided  award,  or  denial  of  some  one  of  the  three  kinds 
of  relief  above  described  as  alone  possible ;  no  adjustment  of 
opposing  rights,  no  partial  relief  to  each  of  the  opposing 
litigants,  is  permitted.     The  judgment  is  either  for  the 

they  are  all,  right  and  remedy,  treated  as  though  belonging  to  this  branch  of 
equity  jurisdiction.  In  the  same  manner,  the  subject  of  partnership,  as 
an  entirety,  is  referred  to  this  jurisdiction,  although  the  interest  to  be 
maintained  and  the  remedy  to  be  obtained  are  wholly  equitable  in  their 
nature.  These  instances  are  examples  merely  of  a  mode  of  treatment 
which  fails  to  draw  any  true  line  of  distinction  between  the  two  great 
departinenta  of  the  equity  jurisdiction. 

(b)  For  an  instance  where  such  re-       Hornthal,  154  N.  Y.  648,  661,  61  Ana. 
lief  was  required,  and  a  mere  personal        St.  Rep.  045,  652,  49  N.  E.  56. 
judgment  waa  rendered,  see  Baily  T. 


209  THE   CONCUERENT   JURISDICTION.  §  175 

defendant  wholly,  that  the  plaintiff  take  nothing  by  his 
action,  or  for  the  plaintiff  wholly,  that  he  recover  posses- 
sion of  a  specified  tract  of  land,  or  of  a  specified  chattel,  or 
that  he  recover  a  single  sum  of  money  from  the  defendant, 
or  from  all  the  defendants  if  there  are  more  than  one.  The 
doctrine  of  set-off,  by  which  a  defendant  may  recover  judg- 
ment for  a  debt  against  the  plaintiff,  is  wholly  of  a  statu- 
tory origin;  and  the  doctrine  of  recoupment,  by  which  the 
plaintiff's  pecuniary  recovery  may  be  lessened  by  means 
of  a  claim  for  damages  in  favor  of  the  defendant,  is  a 
very  recent  innovation  upon  the  common-law  methods  of 
procedure.  The  modes  of  procedure  in  a  court  of  equity 
have  never  been  thus  restricted.  Its  decree  is  not  confined 
to  a  single  adjudication  for  or  against  the  defendant;  but 
as  a  preliminary,  and  leading  up  to  the  final  award  in  favor 
of  either  party,  or  even  in  the  very  final  award  itself  being 
thus  partially  in  favor  of  both  litigants,  it  may  make  any 
adjustments,  admit  any  limitations,  and  determine  upon 
any  cross-demands  and  subordinate  claims  which  complete 
justice  done  to  the  parties  shall  require.  The  decree  in 
equity  can  thus  easily  shape  itself  to  the  circumstances  of 
«ach  case,  even  when  the  final  relief  is  only  an  award  of 
money,  or  of  possession  of  land  or  of  chattels.*"  The  in- 
stances to  which  the  concurrent  jurisdiction  extends  may 
therefore  be  described,  in  a  general  way,  as  follows :  First, 
those  cases  where  the  primary  right,  interest,  or  estate  is 
of  course  legal,  and  where  the  law  gives  its  remedy,  but 

(c)  For  example,  although  an  ad-  as  heir  or  devisee.  And  where  evi- 
ministrator  cannot,  to  the  detriment  dence  of  such  equitable  setoff  has 
of  creditors,  distributees,  or  legatees,  been  received  without  objection,  being 
discharge  a  debt  due  the  estate  by  a  thus  before  the  court  with  the  im- 
cancellation  of  his  individual  liabil-  plied  admission  that  the  pleadings 
ity  to  the  debtor  of  the  estate,  yet  were  broad  enough  to  allow  its  re- 
such  debtor  is  entitled  to  a  credit  by  ception,  such  judgment  may  be  given 
way  of  equitable  set-off,  where,  by  its  upon  the  facts  as  the  right  of  the 
allowance,  justice  will  be  done  as  be-  matter  required,  although  the  defense 
tween  him  and  the  administrator,  of  an  equitable  set-off  has  not  been 
without  affecting  the  rights  of  any  specifically  pleaded;  State  v.  Done- 
one  except  those  of  the  administrator  gan,  94  Mo.  66,  6  S.  W.  693. 

Vol.  I  ^14 


§  176  EQUITY   JURISPRUDENCE.  210 

from  the  superior  flexibility  of  the  equitable  procedure,  and 
the  greater  power  of  the  equitable  decrees  to  do  complete 
justice,  the  relief  conferred  by  equity,  although  of  the  same 
kind  as  that  given  by  the  law,  is  more  efficient  and  com- 
plete; and  secondly,  those  comparatively  few  cases  where, 
from  the  arbitrary,  rigid,  and  technical  nature  of  its  rules 
of  procedure,  the  law  can  give  no  remedy  at  all.^  In  further 
treatment  of  this  subject,  I  shall  state  the  general  doctrines 
upon  which  the  jurisdiction  rests,  and  which  regulate  all 
possible  instances  of  its  exercise,  and  shall  then  enumerate 
and  explain  the  important  and  well-settled  cases  which  come 
within  its  scope. 

§  176.  General  Principle  —  No  Concurrent  Jurisdiction.  ■ — 
The  principle  may  be  stated  in  its  broadest  generality,  that 
in  cases  where  the  primary  right,  interest,  or  estate  to  be 
maintained,  protected,  or  redressed  is  a  legal  one,  and  a 
court  of  law  can  do  as  complete  justice  to  the  matter  in  con- 
troversy, both  with  respect  to  the  relief  granted  and  to  the 
modes  of  procedure  by  which  such  relief  is  conferred,  as 
could  be  done  by  a  court  of  equity,  equity  will  not  inter- 
fere even  with  those  peculiar  remedies  which  are  admin- 
istered by  it  alone,  such  as  injunction,  cancellation,  and  the 
like,  much  less  with  those  remedies  which  are  administered 
both  by  it  and  by  the  law,  and  which  therefore  belong  to  its 
concurrent  jurisdiction.^     This  principle,  however,  must 

2Afl  illustrations  of  this  second  class:  by  the  ancient  rules  of  common- 
law  procedure,  at  the  time  when  the  equity  jurisdiction  commenced,  there 
could  be  no  recovery  at  law  on  a  lost  bond;  and  for  the  same  reason,  one 
partnership  cannot  maintain  an  action  at  law  against  another  firm,  when  the 
two  firms  have  a  common  member. 

1  Southampton  Dock  Co.  v.  Southampton,  etc..  Board,  L.  R.  11  Eq.  254; 
Ck)llins  V.  Clayton,  53  Ga.  649;  Craft  v.  Dickens,  78  111.  131;  Dart  v.  Bar- 
bour, 32  Mich.  2G7,  271;  Ross  v.  Buchanan,  13  111.  55,  58;  Mason  v.  Piggott, 
11  111.  85,  89;  and  the  same  doctrine  applies  under  the  reformed  system 
of  procedure:  Kyle  v.  Frost,  29  Ind.  382;  Claussen  v.  Lafrenz,  4  G.  Greene, 
224,  225-227.  See  also,  sustaining  the  general  principle  as  stated  in  the 
text,  Grand  Chute  v.  Winogar,  15  Wall.  373;  Insurance  Co.  v.  Bailey,  13 
Wall.   616;   Hipp  V.  Babin,   19  How.  271;   South  Eastern  R'y  v.  Brogden,  3 

(a)  Cited  with  approval  in  Rogers    v.  Rogers,  17  R.  I.  623,  24  Atl.  4ft. 


211  THE   CONCURRENT   JURISDICTION.  §  177 

be  understood  as  referring  to  the  original  condition  of  law 
and  equity,  at  a  period  when  equity  was  establishing  its 
jurisdiction,  and  before  the  remedial  powers  of  the  law 
courts  had  been  extended  by  statutes,  or  enlarged  by  the 
gradual  adoption  of  equitable  notions ;  for,  as  will  be  more 
fully  shown  hereafter,  the  present  power  of  the  law  courts 
to  grant  complete  relief  does  not,  in  general,  deprive  equity 
of  a  jurisdiction  which  it  had  formerly  acquired,  because- 
the  law  courts  then  possessed  no  such  power.-  But  ins 
order  that  the  general  principle  may  apply,  the  sufficiency 
and  comijleteness  of  the  legal  remedy  must  be  certain;  if  it. 
is  doubtful,  equity  may  take  cognizance.^  While  the  con- 
current jurisdiction  of  equity  thus  depends  upon  the 
inadequacy  of  legal  remedies  for  the  particular  contro- 
versy, or  for  the  class  of  cases  of  which  the  particular  con- 
troversy is  an  instance,  it  is  impossible  to  define,  by  any 
single  formula,  what  is  the  adequacy  or  sufficiency  of  the 
remedy  at  law  which  shall  prevent  an  exercise  of  the  equi- 
table jurisdiction.  Instead  of  attempting  to  formulate  sucb 
a  comprehensive  proposition,  we  must  describe  the  various 
classes  of  cases  in  which  this  adequacy  exists,  and  over 
which,  as  a  consequence,  the  concurrent  jurisdiction  of 
equity  does  not  extend. 

§   177.  Illustrations.^ — In  all  cases  where  the  plaintiff' 
holds  or  claims  to  have  a  purely  legal  estate  in  land,  and 

Macn.  &  G.  8;  Phillips  v.  Phillips,  9  Hare,  471;  Moxon  v.  Bright,  L.  R.  4 
Ch,  292;  Smith  v,  Leveaux,  2  De  Gex,  J.  &  S.  1;  Foley  v.  Hill.  1  PhilU 
Ch.  399,  2  H.  L.  Cas.  28. 

2Varet  v.  New  York  Ins.  Co.,  7  Paige,  560,  568;  King  v.  Baldwin,  2: 
Johns.  Ch.  554,  17  Johns.  384,  8  Am.  Dec.  415;  Bromley  v.  Holland,  7  Ves.. 
3,  19,  per  Lord  Eldon;  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224,  per 
Lord  Tliurlow;  Billon  v.  Hyde,  1  Atk.  126,  per  Lord  Hardwicke.  And  seft 
post,  §  209. 

3  Rathbone  v.  Warren,  10  Johns.  587 ;  King  v.  Baldwin,  2  Johns.  Ch.  554v. 
17  Johns.  384,  8  Am.  Dec.  415;  Bateman  v.  Willoe,  1  Schoales  &  L.  205,  per 
Lord  Redesdale;  Southampton  Dock  Co.  v.  Southampton,  etc..  Board,  L.  R. 
11  Eq.  254;  South  Eastern  R'y  v.  Brogden,  3  Macn.  &  G.  8. 

(a)  Cited  with  approval  in  Woods-  104;  Rogers  v.  Rogers,  17  B.  L  623, 
worth  V.  Tanner,  94  Mo.  124,  7  S.  W.       24  Atl.  46. 


§  177  EQUITY   JUEISPEUDENCB.  212 

simply  seeks  to  have  his  title  adjudicated  upon,"  or  to  re- 
<;over  possession,  against  an  adverse  claimant  who  also 
relies  upon  an  alleged  legal  title,  there  being  no  equitable 
feature  of  fraud,  mistake,  or  otherwise,  calling  for  the  ap- 
plication of  equitable  doctrines  or  the  granting  of  peculiar 
equitable  reliefs,  the  remedy  at  law  is  adequate,  and  the 
concurrent  jurisdiction  of  equity  does  not  exist.  A  suit 
in  equity,  under  its  concurrent  jurisdiction,  will  not  be 
maintained  to  take  the  place  of  the  action  of  ejectment, 
and  to  try  adverse  claims  and  titles  to  land  which  are 
wholly  legal,  and  to  award  the  relief  of  a  recovery  of  pos- 
session.^ "^    While  this  general  doctrine  is  well  established, 

1  Welby  V.  Duke  of  Rutland,  6  Brown  Pari.  C.  575  (vol.  2,  p.  39,  in  Tom- 
lina's  ed.);  Hill  v.  Proctor,  10  W.  Va.  59,  77;  Caveds  v.  Billings,  16  Fla.  261; 
Strubher  v.  Belsey,  79  111.  307;  Phelps  v.  Harris,  51  Miss.  789,  793;  Lewis  v. 
Cocks,  23  Wall.  466,  469;  Boston  Diatite  Co.  v.  Florence  Mfg.  Co.,  lU 
Mass.  69,  19  Am,  Rep.  310;  Whitehead  v.  Kitson,  119  Mass.  484;  Gris- 
wold  V.  Fuller,  33  Mich.  268;  First  Nat,  Bank  v.  Bininger,  26  N.  J.  Eq.  345; 
WoodruflF  V.  Robb,  19  Ohio,  212,  214;  Wolfe  v.  Scarborough,  2  Ohio  St. 
361,  368;  Wolcott  v.  Robbins,  26  Conn,  336;  Green  v.  Spring,  43  111.  280; 
Roberts  v.  Taliaferro,  7  Iowa,  110,  112;  Shotwell  v.  Lawson,  30  Miss. 
27,  64  Am.  Dec.  145;  Bobb  v.  Woodward,  42  Mo.  482,  488;  Waddell  V. 
Beach,  9  N.  J.  Eq.  793,  795;  Milton  v.  Hogue,  4  Ired.  Eq.  415,  422;  Pell 
T.  Lander,  8  B.  Mon.  554,  558;  Doggett  v.  Hart,  5  Fla.  215,  58  Am.  Dec. 
464;  Dickerson  v.  Stoll,  8  N.  J.  Eq.  294,  298;  Topp  v,  Williams,  7  Humph. 
669;  Hale  v.  Darter,  5  Humph,  79;  Hipp  v.  Babin,  19  How.  271,  277; 
Bowers  v.  Smith,  10  Paige,  193,  200. 

(b)  It  must  be  borne  in  mind  that  104  Fed.  594,  44  C.  C.  A.  64; 
«a8e8  where  relief  is  sought  to  remove  Erskine  v.  Forest  Oil  Co.,  80  Fed. 
«loud  on  title  belong  to  the  exclusive  583;  Eiffert  v.  Craps,  58  Fed.  470, 
jurisdiction.  7   C,  C,  A.   319,  8  U.  S.  App.  436; 

(c)  In  the  following  cases,  the  Jordan  v.  Phillips  &  Crew  Co.,  126 
plaintiff  being  out  of  possession,  the  Ala.  561,  29  South.  831;  Morgan  ▼. 
bill  was  held  to  be  an  ejectment  bill,  Lehman,  Durr  &  Co..  92  Ala.  440, 
and  relief  was  refused:  Fussell  v.  9  South.  314;  Ohm  v.  City  and  County 
Gregg,  113  U.  S.  550,  5  Sup.  Ct.  631;  of  San  Francisco  (Cal.),  25  Pao. 
Lacaflsagne  V.  Chapuis,  144  U.  S.  119,  155;  Gage  v.  Mayer,  117  111.  632,  7 
12  Sup.  Ct.  659 ;  Smyth  v.  New  Or-  N.  E.  97 ;  Pittman  v.  Burr,  79  Mich, 
leans  Canal  &  Banking  Co.,  141  U.  S.  539,  44  N.  W.  951;  I^ininger  v.  Sum- 
656,  12  Sup.  Ct.  113;  Ringo  v.  Binns,  mit  Branch  R.  Co.,  180  Pa.  St.  289, 
36  U.  S.  (10  Pet.)  269;  McGuire  v.  36  Atl.  738;  Saunders  v.  Racquet 
Pennacola  City  Co.,  105  Fed.  677,  44  Club,  170  Pa.  St.  265,  33  Atl.  79,  37 
•0.   C.   A.   670;    Johnson   v.   Munday,  Wkly.    Notes    Cas,    130;    Rogers    r. 


213 


THE   CONCUEEENT   JURISDICTION. 


§177 


still,  in  addition  to  the  particular  cases  of  disputed  bound- 
aries, partition,  and  assignment  of  dower,  over  which  the 
concurrent  jurisdiction  may  extend,  and  in  which  a  remedy 
strictly  legal  may  be  granted,  a  court  of  equity  will  also 
confer  the  final  relief  of  possession,  and  will  decree  a  de- 
fendant to  deliver  up  possession  of  land  to  the  owner,  when 
such  relief  is  incidental  to  the  main  object  of  the  suit,  and 
the  action  is  brought  for  some  object  otherwise  within  the 
equity  jurisdiction.^  ^    In  like  manner,  the  concurrent  juris- 

2  Green  v.  Spring,  43  111.  280;  Roberts  v.  Taliaferro,  7  Iowa,  110,  112. 


Rogers,  17  R.  I.  623,  24  Atl.  46 ;  New 
York  &  N.  E.  R.  Co.  v.  City  of  Provi- 
dence, 16  R.  I.  746,  19  Atl.  759; 
Chandler  v.  Graham,  123  Mich.  327, 
82  N.  W.  814;  Jones  v.  Fox,  20  W. 
Va.  370.  As  stated  in  Frost  v.  Walls, 
93  Me.  405,  45  Atl.  287,  "It  is  not 
the  business  of  equity  to  try  titles 
and  put  one  party  out  and  another 
in."  A  lessee  out  of  possession  can- 
not try  in  equity  the  right  of  one  in 
possession  claiming  to  hold  under  a 
prior  lease.  Weiss  v.  Levy,  166  Mass. 
290,  44  N.  E.  225.  A  receiver  cannot 
maintain  a  bill  to  recover  possession 
of  land  from  a  stranger  to  the  equity 
case  in  which  he  was  appointed. 
Coles  V.  Northrup,  66  Fed.  831,  14 
C.  C.  A.  138,  30  U.  S.  App.  270. 
The  mere  fact  that  the  dispute  in- 
volves a  question  of  boundary  does 
not  give  jurisdiction,  unless  the  case 
is  one  of  which  equity,  under  its  es- 
tablished jurisdiction,  has  cognizance. 
Walker  v.  Leslie,  90  Ky.  642,  14 
S.  W.  682;  Carberry  v.  West  Vir- 
ginia &  P.  R.  Co.,  44  W.  Va.  260,  28 
S.  E.  694.  In  some  jurisdictions  it 
is  held  that  where  a  question  of  title 
is  raised  in  a  partition  or  foreclosure 
bill,  the  title  must  se  established  at 
law.  The  reason  given  is  that  as  to 
the  party  denying  title  the  bill  is  an 
ejectment  bill.     Thus,  in  Osborne  T. 


Osborne,  41  S.  C.  195,  19  S.  E.  494». 
the  plaintiff  in  partition  claimed  half 
of  the  land  and  the  defendant  all  of 
it.  It  was  held  that  the  issue  must 
be  tried  at  law.  In  Benoist  v. 
Thomas,  121  Mo.  660,  27  S.  W.  609, 
the  plaintiff's  title  to  one-half  the 
land  was  undisputed,  but  there  was 
a  dispute  between  the  defendants  as 
to  the  other  half.  See  also,  on  par- 
tition, Capell  V.  Moses,  36  S.  C.  559, 
15  S.  E.  711;  Marshall  v.  Pitts,  39 
S.  C.  390,  17  S.  E.  831.  As  to  for€^ 
closure,  see  Loan  &  Exchange  Bank 
V.  Peterkin,  52  S.  C.  236,  68  Am.  St. 
Rep.  900,  29  S.  E.  546. 

(d)  The  text  is  quoted  in  Hanna 
V.  Reeves,  22  Wash.  6,  60  Pac.  62. 

Delivery  of  Possession  as  Incidental 
to  other  Relief. —  Thus,  in  Woods- 
worth  V.  Tanner,  94  Mo.  124,  7  S.  W. 
104,  a  wife  brought  suit  to  cancel 
a  deed  to  her  husband,  and  it  was 
held  that  as  incidental  thereto  the 
court  might  decree  possession.  The 
court  said :  "  When  the  suit  is  for 
some  purpose  within  the  equitable 
jurisdiction  of  the  court,  and  that 
relief  is  granted,  and  possession  is 
incidental  to  such  relief,  the  court 
may  go  on,  and  award  a  writ  for  the 
possession.  Having  jurisdiction  for 
one  purpose,  it  vrill  give  full  and 
complete  relief,  even  to  the  extent  of 


^^  178  EQUITY   JUEISPRUDENCE  214 

'diction  does  not  embrace  suits  by  the  legal  owner  to  recover 
^possession  of  a  chattel,  except  in  the  few  cases  where  the 
chattel  has  a  certain  special,  extraordinary,  and  unique 
-value  impossible  to  be  compensated  for  by  damages,  nor 
^uits  merely  to  determine  the  legal  title  to  chattels  between 
adverse  claimants,  where  the  claim  of  neither  party  in- 
volves or  depends  upon  any  equitable  interest  or  feature. 
In  all  ordinary  controversies  concerning  the  legal  owner- 
ship or  possession  of  chattels,  the  conmion-law  actions  of 
'replevin  or  trover  furnish  a  complete  and  adequate 
remedy.^  * 

§  178.*  Cases  in  which  the  remedy  is  a  mere  recovery 
•  of  money  do  not  ordinarily  come  under  the  concurrent 
.jurisdiction.    Where  the  primary  right  of  the  plaintiff  is 

3  Bowes  V.  Hoeg,  15  Pla.  403,  408  (recovery  of  possession  of  a  chattel); 
Long  V.  Barker,  85  111.  431  (to  determine  legal  title  to  chattels)  ;  McCul- 
logh  V.  Walker,  20  Ala.  389,  391  (to  enforce  a  gift  of  a  chattel,  legal 
iiemedy  complete)  ;  Young  v.  Young,  9  B.  Mon.  66  (to  try  legal  title  to  chat- 
tels, replevin  suificient)  ;  Comby  v.  McMichael,  19  Ala.  747  (to  compel  de- 
livery of  a  chattel)  ;  Hall  v.  Joiner,  1  S.  C.  186. 

decreeing  possession,  and  will  en-  (e)  Lawrence  v.  Times  Printing 
force  that  branch  of  the  decree."  Cit-  Co.,  90  Fed.  24  (books  and  accounts 
ing  Pom.  Eq.  Jur.,  §  177.  But  the  of  a  newspaper)  ;  Keystone  Elect.  L., 
mere  fact  that  equitable  relief,  such  H.  &  P.  Co.  v.  Peoples'  E.  L.,  H.  &  P. 
as  account,  discovery,  etc.,  is  prayed,  Co.,  200  Pa.  St.  366,  49  Atl.  951; 
does  not  give  jurisdiction  when  the  Jones  v.  MacKenzie,  122  Fed.  390 
right  to  such  relief  does  not  arise  un-  (railroad  ties).  "Of  course  the  mere 
til  the  legal  title  is  established.  fact  that  complainants'  legal  remedies 
North  Pennsylvania  Coal  Co.  v.  would  prove  abortive  because  of  the 
Snowden,  42  Pa.  St.  (6  Wright)  488,  insolvency  of  the  respondents  cannot 
82  Am.  Dec.  530 ;  Williams  v.  Fow-  impart  equity  to  the  bill."  Chambers 
ler,  201  Pa.  St.  336,  50  Atl.  969.  The  v.  Chambers,  98  Ala.  454,  13  South. 
mere  fact  that  a  question  of  priority  674.  Relief  will  not  be  awarded 
of  liens  arises  does  not  authorize  merely  because  discovery  is  asked 
such  relief.  Cole  v.  Mettee,  65  Ark.  when  there  is  no  averment  showing 
603,  67  Am.  St.  Rep.  945,  47  S.  W.  its  materiality  or  necessity.  Arm- 
407.  Although  plaintifT  cannot  sue  strong  v.  Huntons,  1  Rob.  (Va.)  323. 
at  law  because  he  has  not  the  legal  (a)  Cited  with  approval  in  Ben- 
title,  he  cannot  therefore  go  into  nctt  v.  Bennett,  63  N.  J.  Eq.  306,  49 
equity  to  obtain  possession  unless  he  Atl.  501;  Dargin  v.  Hewlitt,  115  Ala. 
«how8  that  defendants  are  alTccted  by  510,  22  South.  128. 
his  equity.  Young  v.  Porter,  3 
»  Woods,  342,  Fed.  Cas.  No.  18,171. 


215  THE    CONCURRENT    JURISDICTION.  §  178 

purely  legal,  arising  either  from  the  non-performance  of 
a  contract  or  from  a  tort,  and  the  money  is  sought  to  be 
recovered  as  a  debt  or  as  damages,  and  the  right  of  action 
is  not  dependent  upon  or  connected  with  any  equitable 
feature  or  incident,  such  as  fraud,  mistake,  accident,  trust, 
accounting,  or  contribution,  and  the  like,  full  and  certain 
remedies  are  afforded  by  actions  at  law,  and  equity  has  no 
jurisdiction ;  these  are  cases  especially  within  the  sole  cog- 
nizance -of  the  law.^  **    This  proposition  does  not  state  the 

1  Cochran  v.  Cochran,  2  Del.  Ch.  17;  Askew  v.  Myrick,  54  Ala.  30;  Bellamy 
V.  Hawkins,  16  Fla.  733;  Collins  v.  Stephens,  58  Ga.  284;  Badger  v.  Mc- 
Namara,  123  Mass.  117;  Stewart  v.  Mumford,  80  111.  192;  Ward  v.  Peck,  114 
Mass.  121;  Finnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep.  292;  Reese 
V.  Bradford,  13  Ala.  837;  Sessions  v.  Sessions,  33  Ala.  522,  525;  Andrews 
V.  Huckabee,  30  Ala.  143;  Maury  v.  Mason,  8  Port.  211;  Torrey  v.  Camden 
etc.  R.  R.,  18  N.  J.  Eq.  293;  Heilman  v.  Union  Canal  Co.,  37  Pa.  St.  100, 
104;  Vose  v.  Philbrick,  3  Story,  335,  344;  Howard  v.  Jones,  5  Ired.  Eq. 
75,  79,  81;  Ohling  v.  Luitjens,  32  111.  23;  Anderson  v.  Lincoln,  5  How. 
(Miss.)  279,  284;  Abbott  v.  Allen,  2  Johns.  Ch.  519,  7  Am.  Dec.  554;  Cur- 
tis V.  Blair,  26  Miss.  309,  327;  Johnson  v.  Conn.  Bk.,  21  Conn.  148,  157 
(damages  for  wrongful  taking  of  chattels)  ;  Wolf  v.  Irons,  8  Ark.  63, 
66;  Stone  v.  Stone,  32  Conn.  142;  Coquillard  v.  Suydam,  8  Blackf.  24,  29; 
Meres  v.  Crisman,  7  B.  Mon.  422  (damages  for  a  tort)  ;  Lawson  v.  Davis, 
7  Gill,  345;  Perkins  v.  Perkins,  16  Mich.  162,  167;  Bennett  v.  Nichols, 
12  Mich.  22;  Blakeley  v.  Biscoe,  1  Hemp.  114;  Echols  v.  Hammond,  30 
Miss.  177;  Norwich  R.  R.  v.  Storey,  17  Conn.  364,  370;  Fletcher  v.  Hooper, 
32  Md.  210;  Jones  v.  Newhall,  115  Mass.  244,  15  Am.  Rep.  97. 

(b)  Quoted  in  Phipps  v.  Kelly,  12  nance.     Elliott  v.  Elliott  (N.  J.),  36 

Oreg.  213,  6  Pac.  707;  cited  in  Myers  Atl.    951.      To    recover    part   of    the 

V.  Sierra  Val.  Stock  &  Agric.  Assn.,  proceeds  recovered  in  an  action  for 

122  Cal.  669,  55  Pac.  689.  tort.      Kammermayer    v.    Helz,    107 

No     Jurisdiction,     Ordinarily,     for  Wis.  101,  82  N.  W.  689.     To  enforce 

Mere  Recovery  of  Damages. —  In  the  an  unlimited  liability  of  stockholders. 

following  cases  relief  was  refused,  a  Marsh  v.   Kaye,    168   N.   Y.    196,   61 

sum  due  imder  a  contract  or  damages  N.   E.    177.     In    like   manner,    relief 

for    breach     thereof     being    sought:  will  be  refused  when  a  mere  money 

Lewis  V.  Baca,  5  N  M.  289,  21  Pac.  recovery  on  a  negotiable  instrument 

343;     Matthews    v.    Matthews,     133  is  asked.    Shields  v.  Barrow,  58  U.  S. 

N.  Y.   679,   31   N.  E.   519;    Chew  v.  (17  How.)    130;  Sioux  Nat.  Bank  v. 

Perkins  (Md.),  31  Atl.  507.  In  the  fol-  Cudahy  Packing  Co.,  58  Fed.  20;  Mc- 

lowing  actions  also  relief  was  refused :  Cullough  v.  Kervin,  49  S.  C.  445,  27 

To    enforce    a    decree    for    alimony  S.    E.    456;    Jumper    v.    Commercial 

granted  in  a  foreign  state.     Bennett  Bank,  48  S.  C.  430,  26  S.  E.  725.     In 

V.  Bennett,  63  N.  J.  Eq.  306,  49  Atl.  jurisdictions   where   a   beneficiary   is 

60L.    To  collect  on  a  bond  for  mainte-  allowed    to    sue    on    a    contract,    it 


§178 


EQUITY   JURISPRUDENCE. 


21S 


entire  doctrine.  Even  when  the  cause  of  action,  based  upon 
a  legal  right,  does  involve  or  present,  or  is  connected  with, 
some  particular  feature  or  incident  of  the  same  kind  as 
those  over  which  the  concurrent  jurisdiction  ordinarily 
extends,  such  as  fraud,  accounting,  and  the  like,  still,  if  the 
legal  remedy  by  action  and  pecuniary  judgment  for  debt  or 
damages  would  be  complete,  sufficient,  and  certain  —  that 
is,  would  do  full  justice  to  the  litigant  parties  —  in  the  par- 
ticular case,  the  concurrent  jurisdiction  of  equity  does  not 
extend  to  such  case.*"    For  example,  whenever  an  action  at 


•would  seem  that  he  should  not  be  al- 
lowed equitable  aid  to  recover  dam- 
ages. Hopkins  v.  Hopkins,  86  Md. 
681,  37  Atl.  371.  An  assignee  of  a 
legal  claim  cannot  ordinarily  seek 
euch  relief  in  equity.  "A  court  of 
equity  will  not  entertain  a  bill  by 
the  assignee  of  a  strictly  legal  right, 
merely  on  the  groimd  that  he  cannot 
bring  an  action  at  law  in  his  own 
name,  nor  unless  it  appears  that  the 
assignor  prohibits  and  prevents  such 
action  from  being  brought  in  his 
name,  or  that  an  action  so  brought 
■will  not  afford  the  assignee  an  ade- 
quate remedy."  Hayes  v.  Hayes,  45 
N.  J.  Eq.  461,  17  Atl.  634;  affirmed, 
Hayes  v.  Berdan,  47  N.  J.  Eq.  567,  21 
Atl.  339.  See  also  Bernz  v.  Marcus 
Sayre  Co.,  52  N.  J.  Eq.  275,  30  Atl. 
21.  Where  the  assignor  collects  after 
the  assignment,  the  assignee  has  an 
adequate  remedy  at  law.  French 
V.  Hay,  89  U.  S.  (22  Wall.)  231. 
A  receiver  cannot  maintain  a  bill 
against  the  sureties  on  the  bond  of 
his  predecessor;  Combs  v.  Shisler, 
47  W.  Va.  373,  34  S.  E.  763;  nor  to 
recover  from  stockholders'  dividends 
illegally  paid;  Hayden  v.  Thompson, 
67  Fed.  273.  A  trustee  under  a 
mortgage  cannot  maintain  a  bill 
against  a  city  to  recover  money  due 
by  the  city  to  his  mortgagor.  Inter- 
national Trust  Co.  V.  Cartersville  I. 


G.  &  W.  Co.,  63  Fed.  341.  For  the- 
same  reason,  a  holder  of  a  judgment 
against  an  insolvent  corporation  can- 
not resort  to  equity  to  compel  the^ 
allowance  of  his  claim  by  the  re- 
ceiver. Denton  v.  Baker,  79  Fed.  189, 
24  C.  C.  A.  476.  Likewise,  where  the- 
relief  sought  is  damages  for  a  tort^ 
as  for  trespass  to  land  (Wiggins  v. 
Williams,  36  Fla.  637,  18  South.  859, 
30  L.  R.  A,  754;  Rhea  v.  Hooper,  73 
Tenn.  (5  Lea)  390),  or  for  conversion 
of  personal  property  (Robertson  v. 
McPherson,  4  Ind.  App.  595,  31 
N.  E.  478),  relief  will  be  refused. 

(c)  This  and  the  following  sentence- 
were  quoted  in  Campbell  v.  Rust,  85^ 
Va.  653,  8  S.  E.  664;  Buck  v.  Ward, 
97  Va.  209,  33  S.  E.  513;  Chapman 
V.  Lee,  45  Ohio  St.  356,  13  N.  E. 
736.  As  stated  by  the  United  States 
Supreme  Court :  "  Whenever  one  per- 
son has  in  his  hands  money  equitably 
belonging  to  another,  that  other  per- 
son may  recover  it  by  assumpsit  for 
money  had  and  received.  The  rem- 
edy at  law  is  adequate  and  complete."' 
Gaines  v.  Miller,  111  U.  S.  395,  4 
Sup.  Ct.  426.  Although  a  note  i» 
delivered  by  mistake,  if  only  a  money 
recovery  is  sought  the  legal  remedy 
is  adequate.  Bolt  v.  Gray,  54  S.  C. 
95,  32  S.  E.  148.  In  Boyce  v.  Allen, 
105  Iowa,  249,  74  N.  W.  948,  the 
plaintiff   conveyed   property   by   abao- 


217 


THE   CONCURRENT   JURISDICTION. 


§178 


law  will  furnisli  an  adequate  remedy,  equity  does  not  as- 
sume jurisdiction  because  an  accounting  is  demanded  or 
needed.^  "^  nor  because  the  case  involves  or  arises  from 
fraud ;^^  nor  because  a  contribution  is  sought  from  per- 

2Jewett  V.  Bowman,  29  N.  J,  Eq.  174;  Badger  v.  McNamara,  123 
Mass.  117;  Passyunk  Building  Association's  Appeal,  83  Pa.  St.  441  (ac- 
counts are  all  on  one  side,  and  no  discovery  is  prayed)  ;  Frue  v.  Loring, 
120  Mass.  507;  Ward  v.  Peck,  114  Mass.  121;  Coquillard  v.  Suydam,  8 
Blackf.  24,  29  (against  an  agent,  where  the  agency  is  for  a  single  trans- 
action) ;  Norwich,  etc.,  R.  R.  v.  Story,  17  Conn.  364,  370  (the  fact  that 
the  accounts  between  the  parties  are  numerous  and  complicated  is  not  alone 
sufficient  to  give  jurisdiction  in  equity  in  Connecticut)  ;  Long  v.  Cochran,  9 
Phila.  267;  Santacruz  v.  Santacruz,  44  Miss.  714,  720. 

3  Fraudulent  misappropriation  and  conversion  of  money :  Bay  City  Bridge 
Co.  V.  Van  Etten,  36  Mich.  210;  where  the  suit  is  merely  to  recover 
damages  on  accovuit  of  the  fraud:  Ferson  v.  Sanger,  Daveis,  252,  259,  261; 
and  see  Vose  v.  Philbrick,  3  Story,  335,  344;  where  a  court  of  law  had 
first  taken  jurisdiction:  Glastonbury  v.  McDonald's  Adm'r,  44  Vt.  450,. 
453;  in  general,  where  the  legal  remedy  is  adequate:  Youngblood  v.  Yoimg- 
blood,  54  Ala.  486;  Huflf  v.  Ripley,  58  Ga.  11;  Suter  v.  Mathews,  115  Mass. 
253. 


lute  deed  as  security.  He  came  into 
equity  to  sue  for  the  price.  It  was 
held  that  such  relief  could  be  given 
at  law  and  the  bill  was  dismissed, 
(d)  Accounting. —  See  Schwalber  v. 
Ehman,  62  N.  J.  Eq.  314,  49  Atl. 
1085;  Willis  v.  Crawford,  38  Oreg. 
622,  63  Pac.  985;  Garland  v.  Hull, 
21  Miss.  (13  Smedes  &  M.)  76,  51 
Am.  Dec.  140;  Dargin  v.  Hewlitt,  116 
Ala.  510,  22  South.  128;  Getman  v. 
Dorr,  59  N.  Y.  Suppl.  788,  28  Misc. 
Rep.  654;  Appeal  of  Pittsburgh,  etc., 
R.  R.  Co.,  99  Pa.  St.  177.  In  Nor- 
deen  v.  Buck,  79  Minn.  352,  82  N.  W. 
644,  the  action  was  held  to  be  legal, 
although  the  examination  of  a  long 
account  was  involved.  And  in  Ga- 
lusha  V.  Wendt,  114  Iowa,  597,  87 
N.  W.  512,  it  was  held  that  mere  in- 
tricacies of  the  calculations  neces- 
sary to  the  determination  of  the 
amount  of  plaintiff's  recovery  do  not 
make  it  an  equitable  action.  The 
mere  fact  that  the  party  from  whom 


the  account  is  sought  is  a  receiver 
does  not  give  equity  jurisdiction. 
Hamm  v.  J.  Stone  &  Sons  Live  Stock 
Co.,  13  Tex.  Civ.  App.  414,  35  S.  W. 
427.  In  Kuhl  v.  Pierce  County,  44 
Nebr.  584,  62  N.  W.  1066,  a  county 
brought  suit  against  two  sets  of  sure- 
ties on  the  bonds  of  a  coimty  treas- 
urer, whose  defalcations  had  so  ex- 
tended that  it  could  not  be  determined 
during  which  term  they  had  occurred. 
The  court  held  that  the  complication 
was  due  to  the  laches  of  the  county 
and  that  the  right  of  the  defendants 
to  a  jury  trial  could  not  be  destroyed 
thereby. 

(e)  Fraud. —  See  Whitney  v.  Fair- 
banks, 54  Fed.  985;  Andrews  v. 
Moen,  162  Mass.  294,  38  N.  E.  505; 
State  V.  Jones,  131  Mo.  194,  33  S.  W. 
23;  Krueger  v.  Armitage,  58  N.  J. 
Eq.  357,  44  Atl.  167;  Polhemus  v. 
Holland  Trust  Co.,  59  N,  J.  Eq.  93, 
45  Atl.  534;  Shields  v.  McCandlish, 
73  Fed.  318.    In  Paton  v.  Major,  40 


§  178  EQUITY    JURISPRUDENCE.  218 

sons  jointly  indebted;^'  nor  even  to  recover  money  held  in 
trust,  where  an  action  for  money  had  and  received  will  lie.' 
In  the  following  cases,  which  are  given  as  illustrations,  the 
■concurrent  jurisdiction  of  equity  was  held  not  to  exist,  al- 
though each  case  presented  some  peculiar  feature  which  was 
claimed  to  be  equitable,  and  to  remove  it  from  the  exclusive 
jurisdiction  of  the  law:  Where  a  judgment  debtor  had 
died,  and  no  administrator  had  been  appointed,  a  suit  in 
equity  could  not  be  maintained  by  the  creditor  to  recover  the 
amount  of  his  judgment;*'  to  recover  for  work  and  labor 
done  for  the  benefit  of  trust  estates,  a  statute  having  au- 
thorized suits  at  law  for  the  collection  of  such  claims;^  a 
suit  by  one  executor  against  his  co-executor  to  recover  the 
plaintiff's  share  of  the  compensation  allowed  by  the  pro- 
bate court  and  retained  by  the  defendant;^  a  suit  by  a 
judgment  creditor  of  a  decedent,  against  the  administrator, 
to  recover  the  amount  of  his  judgment;®  where  a  mere 

4  Patterson  v.  Lane,  35  Pa.  St.  275  (suit  by  a  creditor  of  an  insolvent 
corporation  against  the  stockholders,  to  enforce  their  individual  liability, 
where  a  remedy  was  given  at  law  by  statute)  ;  Stone  v.  Stone,  32  Conn. 
142  (suit  on  implied  contract  against  several  defendants,  to  recover  money 
paid   out   for   tlieir   joint  benefit). 

5Crooker  v.  Rogers,  58  Me.  339. 

6  Cochran  v.  Cochran,  2  I>el.  Ch.  17.  He  should  procure  the  appoint- 
ment of  an  administrator,  and  proceed  in  law  against  him. 

7  Askew  V.  Myrick,  54  Ala.  30. 

8  Bellamy  v.  Hawkins,  16  Fla.  733.  An  action  for  money  had  and  re- 
ceived would  give  a  perfect  remedy. 

9  Collins  v.  Stephens,  58  Ga.  284.  An  action  at  law  against  the  adminis- 
trator and  his  sureties  on  his  bond  would  give  complete  relief  if  he  failed 
to  pay  the  judgment. 

Fed.   210,   the   court   quoted   the   fol-  money    had    and    received."      For    a 

lowing  from  Buzard  v.  Houston,  119  good  statement  of  the  rule,  see  Secu- 

U.  S.  347,  7  Sup.  Ct.  249 :     "  In  cases  rity  Sav.  &  Loan  Assn.  v.  Buchanan, 

of   fraud   or   mistake,   as   under   any  60  Fed.  799,  14  C.  0.  A.  97,  31  U.  S. 

other   head   of   chancery  jurisdiction,  App.  244. 

a  court  of  the  United  States  will  not  (f)  Contribution.— Myers  v.  Sierra 
sustain  a  bill  in  equity  to  obtain  only  Val.  Stock  &  Agric.  Assn.,  122  Cal. 
a'  decree  for  the  payment  of  money  (i(i!),  55  Pac.  089  (suit  to  enforce  a 
by  way  of  damages  when  the  like  riglit  of  contribution  among  stock- 
amount  can  b(!  recovered  at  law  in  holders,  created  by  statute),. 
an    actioQ    Bounding    in    tort    or    for 


219  THE   CONCURRENT   JURISDICTION.  §  179 

pecuniary  judgment  at  law  against  the  debtor  would  be 
useless,  because  he  is  insolvent,  or  is  a  non-resident  of  the 
state,  or  has  absconded,  or  for  any  other  similar  reason;^** 
suit  by  grantee  of  land  in  possession,  to  recover  back  the 
purchase  price,  on  account  of  the  failure  of  the  grantor's 
title ;  ^^  suit  by  a  ward  against  his  guardian  and  sureties  on 
the  guardian 's  bond ;  ^^  a  suit  to  establish  and  enforce  a  mere 
personal  debt  of  the  defendant  as  a  lien  on  his  lands ; "  and 
in  Massachusetts  it  is  held  that  no  suit  can  be  maintained  by 
the  vendor  against  the  purchaser  to  compel  the  specific 
performance  of  a  contract  for  the  sale  of  land,  when  the 
only  relief  given  by  the  decree  is  the  recovery  of  the  unpaid 
purchase  price,  on  the  ground  that  exactly  the  same  relief 
can  always  be  obtained  by  an  action  at  law.^*  This  con- 
clusion, however,  rests  upon  the  statutory  limitations  of  the 
jurisdiction  in  Massachusetts,  and  is  opposed  to  the  general 
doctrines  of  equity  jurisprudence. 

§  179.  Cognizance  First  Taken  by  a  Law  Court.*—  In  fur- 
ther limitation  upon  the  power  of  equity  to  interfere  where 
the  primary  rights,  interests,  or  estates  are  legal,  the  doc- 
trine is  well  settled  that  when  the  jurisdictions  of  law  and 
of  equity  are  concurrent,  the  one  which  first  takes  actual 
cognizance  of  any  particular  controversy  ordinarily  be- 
comes thereby  exclusive.    If,  therefore,  the  subject-matter 

10  Finnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep.  292;  Reese  v.  Brad- 
ford, 13  Ala.  837  (defendant  out  of  the  state)  ;  Heilman  v.  Union  Canal 
Co.,  37  Pa.  St.  100,  104  (insolvency  of  defendant)  ;  Meres  v.  Chrisman,  7  B. 
Mon.  422  (defendant  has  absconded)  ;  Echols  v.  Hammond,  30  Miss.  177 
(defendant  non-resident  or  absconding). 

11  Anderson  v.  Lincoln,  6  How.  (Miss.)  279,  284;  Abbott  v.  Allen,  2  Johna. 
Ch.  519,  7  Am.  Dec.  554;  as  to  when  the  grantee  may  sue  in  equity,  see 
Waddell  v.  Beach,  9  N.  J.  Eq.  793,  796. 

i2Lawson  v.  Davis,  7  Gill,  345. 

13  Perkins  v.  Perkins,  16  Mich.  162,  167;  Bennett  v.  Nichols,  12  Mich.  22. 

1*  Jones  V.  Newhall,  115  Mass.  244,  15  Am.  Rep.  97. 

(a)  This  paragraph  of  the  text  is  &  Tr,  Co.,  20«  Pa.  St.  548,  56  AtL 

cdted    and    followed    in    German    v.  33;  Druon    V.  Sullivan,   66  Vt.  60^ 

Browne,  137  Ala.  429,  34  South.  985;  30  AtL  98. 
Sprigg   V.   Commonwealth   Title    Ins. 


§  179  EQUITY    JURISPRUDENCE.  220 

or  primary  right  or  interest,  although  legal,  is  one  of  a 
class  wliich  may  come  within  the  concurrent  jurisdiction  of 
equity,  and  an  action  at  law  has  already  been  commenced, 
a  court  of  equity  will  not,  unless  some  definite  and  sufficient 
ground  of  equitable  interference  exists,  entertain  a  suit 
over  the  same  subject-matter  even  for  the  purpose  of  grant- 
ing reliefs  peculiar  to  itself,  such  as  cancellation,  injunc- 
tion, and  much  less  to  grant  the  same  kind  of  relief  which 
can  be  obtained  by  the  judgment  at  law.  The  grounds 
which  will  ordinarily  prevent  the  application  of  this  doc- 
trine, and  will  permit  the  exercise  of  the  equitable  jurisdic- 
tion in  such  cases,  are  the  existence  of  some  distinctively 
equitable  feature  of  the  controversy  which  cannot  be  de- 
termined by  a  court  of  law,  or  some  fraudulent  or  otherwise 
irregular  incidents  of  the  legal  proceedings  sufficient  to 
warrant  their  being  enjoined,  or  the  necessity  of  a  discov- 
ery, either  of  which  grounds  would  render  the  legal  remedy 
inadequate.  This  rule  results  in  part,  in  the  United  States, 
from  the  provisions  of  the  national  and  state  constitutions 
securing  the  right  to  a  jury  trial  which  belongs  especially  to 
the  machinery  of  legal  actions.^  ^  In  cases  which  are  brought 

1  Hipp  V.  Babin,  19  How.  271;  Insurance  Co.  v.  Bailey,  13  Wall.  616; 
Oelrichs  v.  Spain,  15  Wall.  211,  228;  Grand  Chute  v.  Winegar,  15  Wall. 
373;  Smith  v.  Mclver,  9  Wheat.  532;  Crane  v.  Bunnell,  10  Paige,  333;  Bank 
of  Bellows  Falls  v.  Eutland  &  B.  R.  R.,  28  Vt.  470,  477;  Stearns  v.  Stearna^ 
16  Mass.  167,  171;  Mallett  v.  Dexter,  1  Curt.  178;  Winn  v.  Albert,  2  Md. 
Ch.  42;   Nelson  v.  Dunn,  15  Ala.  501;  Gould  v.  Hayes,  19  Ala.  438;  Thomp- 

(b)  Equity  will   not  withdraw  the  general     proposition,    see    Sweeny    v. 

litigation    concerning    an    accounting  Williams,    36    N.    J.    Eq.    627 ;     Ely 

from  a  coramon-law  court,  unless  it  v.    Crane,   37    N.   J.   Eq.    160;    New- 

clearly   appears   that  such  course  is  man  v.  Commercial   Nat.   Bank,    15ft 

necessary,  in  order  that  complete  jus-  111.  530,  41  N.  E.   156;   Erste  Soko- 

tice  may  be  done,  but  will  do  so  when  lower   Congregation   v.   First   United,, 

the  account   is   complicated   or   intri-  etc.,    Verein,    32   Misc.   Rep.    269,    66 

cate,   and   in  such   case  will   restrain  N.   Y.   Suppl.   356;    Spiller  v.   Wells, 

the   legal    action.     Ely  v.   Crane,   37  96  Va.  598,  70  Am.  St.  Rep.  878,  32 

N.  J.  Eq.  160,  564.     See  also  Casper-  S.  E.  46;   McCalla  v.  Beadloston,   17 

son  V.  Casperson,  65  N.  J.  L.  402,  47  R.   I.  20,   20  Atl.    11;    Wilkinson  ▼, 

Atl.    428;    Nash    v.    McCathern,    183  Stuart,  74  Ala.  198. 
Mass.    345,    67    N.   E.    323.     On    the 


221  THE    CONCURRENT    JURISDICTION.  §   180 

to  procure  some  distinctively  equitable  remedy,  and  which 
therefore  belong  to  the  exclusive  jurisdiction,  the  doctrine 
must  be  regarded  as  merely  regulating  the  exercise  of  that 
jurisdiction,  but  in  the  cases  which  belong  to  the  concurrent 
jurisdiction  it  must  be  regarded  as  one  of  the  elements 
which  determine  the  very  existence  of  such  jurisdiction. 

§  J  80.  General  Principle  —  Concurrent  Jurisdiction  Exists. — 
The  propositions  contained  in  the  preceding  paragraphs 
are  all  negative  in  their  form;  I  shall  now  state  the  rules 

son  V.  Hill,  3  Serg.  167;  Bumpass  v.  Reams,  1  Sneed,  595;  Merrill  v.  Lake, 
16  Ohio,  373,  47  Am.  Dec.  377;  Mason  v.  Piggott,  11  111.  85;  Ross  v.  Bu- 
chanan, 13  111.  55;  Hempstead  v.  Watkins,  6  Ark.  317,  42  Am.  Dec.  696.  En 
Grand  Chute  v.  Winegar,  15  Wall.  373,  an  action  at  law  had  been  brought 
on  certain  bonds  issued  by  the  municipal  corporation,  and  the  defense  was 
set  up  that  they  had  been  issued  fraudulently,  and  without  authority, 
etc.  While  said  action  was  pending,  the  corporation  brought  the  suit  in 
-equity,  setting  up  the  same  fraud  and  want  of  authority,  and  praying  that 
the  bonds  might  be  surrendered  up  and  canceled.  The  court  held  that  al- 
though equity  might  have  a  concurrent  jurisdiction,  still,  as  the  courts  of 
law  had  first  taken  cognizance  of  the  matter,  and  there  was  nothing  to  show 
that  the  defense  set  up,  if  established,  would  not  be  an  adequate  remedy,  a 
court  of  equity  could  not  interfere  even  to  grant  its  peculiar  relief  of  can- 
cellation. Hunt,  J.,  thus  states  the  general  doctrine :  "  It  is  an  elementary 
principle  of  equity,  that  when  full  and  adequate  relief  can  be  obtained  in  a 
suit  at  law,  a  suit  in  equity  cannot  be  maintained.  .  .  .  And  the  result 
of  the  argument  is,  that  whenever  a  court  of  law  is  competent  to  take 
cognizance  of  a  right,  and  has  power  to  proceed  to  a  judgment  which  affords 
a  plain,  adequate,  and  complete  remedy,  without  the  aid  of  a  court  of 
equity,  the  plaintiff  must  proceed  at  law,  because  the  defendant  has  a  con- 
stitutional right  to  a  trial  by  jury."  In  Insurance  Co.  v.  Bailey,  13  Wall. 
616,  an  action  at  law  had  been  brought  on  a  policy  of  life  insurance  by  the 
executors  of  the  person  assured,  and  the  company  set  up  the  defense  that 
the  policy  had  been  obtained  by  means  of  fraudulent  representations.  The 
company  then  commenced  this  suit  in  equity  to  have  the  policy  canceled 
on  the  same  ground.  The  court  held  that  the  equity  suit  could  not  be  main- 
tained, because  the  jurisdiction  of  the  law  had  first  attached,  and  the  ques- 
tion of  fraud  could  be  fully  tried,  and  the  company  obtain  complete  relief, 
in  the  legal  action  then  pending.  In  Bank  of  Bellows  Falls  v.  Rutland,  etc., 
R.  R.,  28  Vt.  470,  an  action  at  law  had  been  brought  against  the  bank  to 
recover  damages  for  the  taking  of  certain  property  under  an  execution  and 
judgment  against  the  railway  company,  which  the  company  had  previ- 
ously conveyed  to  the  plaintiff  in  said  action.  The  bank  thereupon  com- 
menced this  suit  in  equity,  praying  to  have  such  conveyance  set  aside  and 
canceled  on  the  ground  of  its  being  fraudulent  as  against  creditors  of  the 
jailway,  and  to  have  the  action  at  law  enjoined.     The  court  held  it  to  be  a 


§  180  EQUITY    JURISPEUDENCE.  222 

which  affirmatively  define  the  extent  and  limits  of  the  con- 
current jurisdiction.  The  doctrine,  in  its  most  general  and 
comprehensive  form,  admits  the  existence  of  the  concurrent 
jurisdiction  over  all  cases  in  which  the  remedy  at  law  is 
not  certain,  complete,  and  sufficient.  The  fact  that  there  is 
a  legal  remedy  is  not  the  criterion;  that  legal  remedy,  both 
in  respect  to  its  final  relief  and  its  modes  of  obtaining  the 
relief,  must  be  as  efficient  as  the  remedy  which  equity  would 
confer  under  the  same  circumstances,  or  else  the  concurrent 
jurisdiction  attaches.^  *    In  applying  this  doctrine,  the  ordi- 

well-settled  doctrine  that  in  all  cases  of  concurrent  jurisdiction  the  cause 
belongs  exclusively  to  the  tribunal  which  first  takes  cognizance  of  it;  that 
the  question  whether  the  conveyance  was  fraudulent  could  be  decided  ia 
the  legal  action,  and  if  the  defense  of  fraud  was  made  out  therein,  the  bank 
would  obtain  a  complete  relief,  and  that  no  special  ground  was  shown  why 
this  rule  should  not  apply  in  the  present  case.  In  Crane  v.  Bunnell,  10 
Paige,  333,  an  action  at  law  had  been  brought  on  a  note  payable  in  chattels, 
and  the  defense  was  set  up  that  the  note  had  been  procured  by  fraudulent 
representations.  The  defendant  then  filed  this  bill  in  chancery,  alleging  the 
same  fraud  and  praying  to  have  the  note  canceled  and  the  action  at  law 
enjoined.  The  court,  admitting  that  it  had  a  concurrent  jurisdiction  ia 
cases  of  fraud,  and  might  entertain  a  suit  for  discovery  and  relief,  held  that 
there  was  a  material  difference  when  the  suit  was  commenced  after  the  ac- 
tion at  law.  In  such  a  suit  the  complainant  might  perhaps  be  entitled  to- 
a  discovery;  but  he  could  not  have  the  trial  and  decision  of  the  contro- 
versy removed  from  the  court  of  laAV  which  had  first  taken  cognizance  of 
it,  and  in  which  tlie  parties  could  have  the  benefit  of  a  jury  trial. 

1  Some  of  the  cases  in  which  this  rule  is  laid  down,  and  in  which  the 
'suitable  jurisdiction  was  spoken  of  by  the  court  as  being  "  concurrent," 
"eally  belonged  to  the  exclusive  jurisdiction,  since  the  reliefs  sought  for  or 
obtained  were  those  administered  alone  by  equity;  but  the  doctrine  applies 
nost  directly  to  the  concurrent  jurisdiction,  and  is  in  fact  a  fundamental 
element  of  its  existence;  when  applied  to  cases  coming  within  the  exclusive 
jurisdiction,  the  doctrine  should  be  regarded  merely  as  one  of  the  general 
rules  which  control  the  administration  of  its  purely  equitable  reliefs:  Cur- 
rier V.  Roscbrooks,  48  Vt.  34,  38;  Irwin  v.  Irwin,  50  Miss.  3G3,  368;  Martin> 
V.  Tidwell,  30  Ga.  332,  345;  Walker  v.  Morris,  14  Ga.  323;  Kecton  v.  Sprad- 
ling,  13  Mo.  321;  State  v.  McKay,  43  Mo.  594,  598;  Holland  v.  Anderson,^ 
38  Mo.  55,  58;  Livingston  v.  Livingston,  4  Johns.  Ch.  287,  290,  291,  8  Am. 
Dec.  562;  Wiswall  v.  McGovern,  2  Barb.  270;  Pope  v.  Solomons,  36  Ga. 
641,  545;  Morris  v.  Thomas,  17  111.  112,  115;  Hunt  v.  Danforth,  2  Curt. 
692,  003;  Carr  v.  Sillovvay.  105  Mass.  543,  549;  Richardson  v.  Brooks,  52: 
Mies.  118,  123;  Southampton  Dock  Co.  v.  Southampton,  etc..  Board.  L.  R.  IL 

(a)  llie  text  is  quoted  in  Mack  v.  Latta  (N.  Y.),  71  N.  E.  97,  by  Par- 
ker, C.  J. 


223  THE    CONCURRENT    JURISDICTION.  §    181 

nary  instances  of  the  concurrent  jurisdiction  in  which  the 
final  relief  consists  in  the  obtaining  possession  of  a  specific 
parcel  of  land,  substantially  the  same  as  would  be  conferred 
by  a  court  of  law,  are  few  and  well  defined ;  namely,  the  par- 
tition of  land,  the  assignment  of  dower,  and  the  settlement 
of  disputed  boundaries.  But  in  addition  to  these  three 
classes,  the  concurrent  jurisdiction  embraces  other  cases 
involving  the  ownership  or  enjoyment  of  lands,  and  a  relief 
which  is  substantially  the  recovery  of  possession  will  be 
conferred,  where  the  facts  and  circumstances  are  special, 
and  the  remedy  at  law  would  be  doubtful,  incomplete,  or 
insufficient.^  The  same  is  true  with  respect  to  pecuniary 
relief.  While  the  various  instances  in  which  equity  will 
decree  a  recovery  of  money  as  the  final  remedy,  and  which 
constitute  a  most  important  part  of  its  concurrent  juris- 
diction, are  well  ascertained  and  form  a  settled  and  certain 
remedial  system,  they  by  no  means  exhaust  that  jurisdic- 
tion ;  it  extends  to  and  embraces  all  cases  of  legal  primary 
rights  and  causes  of  action  for  which  the  law  furnishes  no 
certain,  adequate,  and  complete  remedy.^ 

§  181.  Effect  of  a  Partial  Jurisdiction. —  The  concurrent 
jurisdiction  of  equity  to  grant  remedies  which  are  legal  in 
cases  which  might  come  within  the  cognizance  of  the  law 
courts  is  materially  affected  by  the  operation  of  two  im- 
portant principles,  which  are  now  merely  stated,  and  which 
will  be  more  fully  discussed  in  a  subsequent  section.  The 
first  of  these  principles  is,  that  when  a  court  of  equity  has 
jurisdiction  over  a  cause  for  any  purpose,  it  may  retain  the 

Eq.  254;  South  Eastern  R'y  v.  Brogden,  3  Macn.  &  G.  8,  and  cases  cited; 
Boyce's  Executors  v.  Grundy,  3  Pet.  210,  215;  Watson  v.  Sutherland,  5 
Wall.  74,  78;  Dows  v.  Chicago,  11  Wall.  108,  110. 

2  See  Respass  v.  Zorn,  42  Ga.  389;  Watkins  v.  Owens,  47  Miss.  593,  598; 
Academy  of  Visitation  v.  Clemens,  50  Mo.  167;  Otley  v.  Haviland,  36  Miss.  19. 

3  Franklin  Ins.  Co.  v.  McCrea,  4  G.  Greene,  229  (decreeing  payment  of 
the  amount  due  on  a  policy  of  insurance  after  a  reformation  of  it)  ;  Hunt  v. 
Danforth,  2  Curt.  592,  603  (recovery  by  a  married  woman  of  money  left  to 
her  separate  use)  ;  Gay  v.  Edwards,  30  Miss.  218,  230  (where  several  claim- 
ants are  separately  interested  in  the  same  fund,  their  shares  unascertained)  ; 
Edsell  V.  Briggs,  20  Mich.  429,  432;  Carr  v.  Silloway,  105  Mass.  543. 


§  181  EQUITY   JURISPRUDENCE.  224 

cause  for  all  purposes,  and  proceed  to  a  final  detei*mination 
of  all  the  matters  at  issue.  For  this  reason,  if  the  contro- 
versy contains  any  equitable  feature  or  requires  any  purely 
equitable  relief  which  would  belong  to  the  exclusive  juris- 
diction, or  involves  any  matter  pertaining  to  the  concurrent 
jurisdiction,  by  means  of  which  a  court  of  equity  would  ac- 
quire, as  it  were,  a  partial  cognizance  of  it,  the  court  may  go 
on  to  a  complete  adjudication,  and  may  thus  establish 
purely  legal  rights  and  grant  legal  remedies  which  would 
otherwise  be  beyond  the  scope  of  its  authority.^  *    The  equi- 

1  Oelrichs  v.  Spain,  15  Wall.  211,  228;  Hamilton  v.  Cumminga,  1  Johns. 
Ch.  517;  Hawley  v.  Cramer,  4  Cow.  717;  Crane  v.  Bunnell,  10  Paige,  333; 
Rathbone  v.  Warren,  10  Johns.  587,  596;  King  v.  Baldwin,  17  Johns.  384, 
8  Am.  Dec.  415;  Bradley  v.  Bosley,  1  Barb.  Ch.  125;  Billups  v.  Sears,  5 
Gratt.  31,  50  Am.  Dec.  105;  Rust  v.  Ware,  6  Gratt.  50,  52  Am.  Dec.  100; 
Parker  v.  Kelly,  10  Smedes  &  M.  184;  Jesus  College  v.  Bloom,  3  Atk.  262, 
263,  Amb.  54;  Ryle  v.  Haggie,  1  Jacob  &  W.  234,  237;  Corporation  of 
Carlisle  v.  Wilson,  13  Ves.  276,  278,  279;  Adley  v.  Whitstable  Co.,  17  Ves. 
315,  324;  Pearce  v.  Creswick,  2  Hare,  286,  296;  McKenzie  v.  Johnston,  4 
Madd.  373;  Martin  v.  Tidwell,  36  Ga.  332,  345;  Walker  v.  Morris,  14  Ga. 
323;  Keeton  v.  Spradling,  13  Mo.  321;  State  v.  McKay,  43  Mo.  594,  598; 
Pope  V.  Solomons,  36  Ga.  541,  545;  cases  of  discovery  and  suit  retained 
for  complete  relief:  Handley's  Ex'r  v.  Fitzhugh,  1  A.  K.  Marsh.  24;  Sanborn 
V.  Kittredge,  20  Vt.  632,  50  Am.  Dec.  58;  but  see  Little  v.  Cooper,  10  N.  J. 
Eq.  273,  275,  and  Brown  v.  Edsall,  9  N.  J.  Eq.  256;  Clark  v.  White,  12 
Pet.  178,  188  (in  a  suit  to  compel  delivery  of  instruments  under  an  agree- 
ment, court  went  on  and  decreed  defendant  to  repay  money  paid  out  by  the 
plaintiff)  ;  Franklin  Ins.  Co.  v.  McCrea,  4  G.  Greene,  229  (in  suit  to  reform 
a  policy  of  insurance,  court  went  on  and  ordered  payment  of  the  amount 

(a)  Quoted  in  Carpenter  v.  Osborn,  Keith  v.  Henkleman,  173  111.  137,  50 

102  N.  Y.  561,  7  N.  E.  823;  Stickney  N.  E.  692;  Bank  of  Stockham  v.  Al- 

V.  Goudy,  132  111.  213,  23  N.  E.  1034;  ter,    61    Nebr.    359,    85    N.    W.    300; 

Wiggins  V.  Williams,  36  Fla.  637,  18  Fleishner  v.  Citizens'  R.  E.  &  I.  Co., 

South.  859,  30  L.  R.  A.  754;  U.  S.  v.  25   Oreg.    119,   35   Pac.    174;    Install- 

Union  Pac.  R'y  Co.,   160  U.  S.  1,  16  ment   B.   &   L.   Co.   v.   Wentworth,    1 

Sup.   Ct.    190;    Chrislip   v.   Teter,   43  Wash.  St.  467,  25  Pac.  298;  Freer  v. 

W.  Va.  356,  27  S.  E.  288.     Cited  with  Davis,  52  W.  Va.  1,  43  S.  E.  164,  94 

approval  in  Lynch  v.  Metropolitan  El.  Am.  St.  Ecp.  895,  59  L.  R.  A.  556,  dis- 

R'y  Co.,   129  N.  Y.  274,  26  Am.   St.  senting  opinion;  Keith  v.  Henkleman, 

Rep.  523,  29  N.  E.  315,  15  L.  R.  A.  68  111.  App.  023;  Richi  v.  Chattanooga 

287;    Chambers    v.    Cannon,    62    Tex.  Brewing  Co.,  105  Tcnn.  651,  58  S.  W. 

293;    Walters   v.   Farmers'   Bank,   76  646;     Hagan     v.     Continental     Nat. 

Va.  12;  Blair  v.  Smith,  114  Ind.  114,  Bank    (Mo.),   81   S.   W.    171.      For  a 

5   Am.   St.   Rep.   593,    15   N.   E.   817;  full  examination  of  this  doctrine,  see 

Broadis    v.    Broadis,    86    Fed.    951;  post,  §§  231-242. 


225  THE    CONCTJKRENT   JUKISDICTION,  §  181 

table  feature  or  incident  which  most  frequently  draws  a 
cause  completely  within  the  cognizance  of  equity,  and  en- 
ables the  court  to  proceed  to  a  full  adjudication  of  all  the 
issues  and  to  a  grant  of  all  necessary  reliefs,  legal  as 
well  as  equitable,  is  the  auxiliary  remedy  of  a  discovery.  It 
should  be  carefully  noticed,  however,  that  the  proposition 
is  not  stated  in  absolute  terms,  as  though  the  rule  were  per- 
emptory; it  is  rather  permissive,  and  is  by  no  means  uni- 
versal in  its  operation.^  Immediately  derived  from  this 
principle,  as  a  corollary  or  particular  phase  of  it,  is  the 
doctrine  that  the  concurrent  jurisdiction  of  equity  may  be 
exercised  over  matters  and  causes  of  action  which  are  legal, 
and  by  the  granting  of  legal  remedies,  in  order  to  avoid  a 
multiplicity  of  suits.  Where  numerous  actions  at  law  are 
brought,  or  are  about  to  be  brought,  either  by  the  same  or 
by  different  parties,  all  involving  and  requiring  the  deci- 
sion of  the  same  questions  of  law  or  of  fact,  so  that  the  de- 
termination of  one  would  not  legally  affect  the  others,  a 
court  of  equity  may,  in  order  to  do  full  justice  to  the  liti- 
gants and  to  avoid  great  expense,  take  cognizance  and  adju- 
dicate upon  all  the  rights  and  confer  all  the  remedies  in 
one  suit,  although  both  the  primary  rights  and  the  final 
reliefs  are  legal.    This  instance  of  the  concurrent  jurisdio- 

due  on  the  policy  as  reformed)  ;  Mays  v.  Taylor,  7  Ga.  238,  244  (court  went 
on  and  decreed  payment  of  money,  although  an  action  at  law  would  lie  for 
a  breach  of  contract)  ;  Brooks  v.  Stolley,  3  McLean,  523,  527  (in  a  suit 
for  the  infringement  of  a  patent  right,  the  court  may  determine  matters 
not  originally  within  its  jurisdiction,  and  may  grant  purely  legal  remedies 
therefor;  viz.,  the  payment  of  siuns  of  money  stipulated  under  a  contract  for 
the  use  of  the  patent);  Souder's  Appeal,  57  Pa.  St.  498,  502;  Zetelle  v. 
Myers,  19  Gratt.  62  (suit  in  equity  must  include  the  entire  transaction; 
plaintiff  cannot  divide  it,  and  sue  in  equity  for  a  part  and  at  law  for  a 
part)  ;  cases  where  damages  may  be  awarded  in  a  suit  for  specific  perform- 
ance: Corby  v.  Bean,  44  Mo.  379;  Cuflf  v.  Borland,  55  Barb.  481;  De  Bemer 
V.  Drew,  39  How.  Pr.  466.  See  also  Boyd  v.  Hunter,  44  Ala.  705  (decreeing 
payment  of  rent  due  by  a  tenant)  ;  People  v.  Chicago,  53  111.  424  (in  suit 
to  enjoin  certain  unlawful  acts,  all  rights  were  settled  and  remedies  given, 
although  legal)  ;  Gillian  v.  Chancellor,  43  Miss.  437,  5  Am,  Rep.  498  (final 
settlement  of  a  decedent's  estate)  ;  Carlisle  v.  Cooper,  21  N.  J.  Eq.  576  (com- 
plete relief  in  case  of  a  private  nuisance). 
3  See  post,  §§  223-229,  where  the  doctrine  is  fully  examined. 

Vol.  I  — 15 


§  182  EQUITY   JURISPRUDENCE.  226 

tion  plainly  rests  upon  the  arbitrary,  unyielding,  and  in- 
sufficient modes  of  procedure  in  actions  at  law,  and  in  the 
ample  power  of  the  equitable  procedure  to  adapt  its  judicial 
proceedings  and  its  final  reliefs  to  the  circumstances  of 
each  case,  by  bringing  in  all  parties  interested  in  a  contro- 
versy, no  matter  how  unequal  their  interests  may  be,  and 
by  awarding  complete  relief  no  matter  how  conditional  and 
limited,  to  all  these  parties  by  means  of  one  suit  and  decree.' 
§  182.  Effect  of  Jurisdiction  Subsequently  Acquired  by  the 
Law  Courts.' —  The  second  principle,  which  is  most  import- 
ant in  its  effects  upon  the  modern  concurrent  jurisdiction,  is 
the  following:  "Whenever  equity  originally  acquired  juris- 
diction over  any  particular  subject-matter,  right,  or  inter- 
est, because  the  law  either  did  not  recognize  the  existence 
of  the  right  or  interest,  or  could  not  furnish  an  adequate 
remedy  for  its  protection,  and  the  scope  of  the  common  law 
has  since  become  enlarged,  so  that  it  now  not  only  admits 
the  particular  primary  right  or  interest  to  be  legal,  but  also 
furnishes  a  legal  remedy  by  its  actions,  which  may  even  he 
adequate  under  ordinary  circumstances,  still  the  equitable 
jurisdiction  is  not  in  general  thereby  destroyed  or  lessened, 
although  it  is  made  to  be  concurrent,  and  although  the  spe- 
cial reasons  for  its  continued  exercise  —  namely,  the  inade- 
quacy of  the  legal  remedy  —  may  no  longer  exist.  The 
scope  of  the  law  and  the  jurisdiction  of  the  law  courts  have 
thus  been  enlarged  in  two  different  modes.  Since  the  earlier 
and  more  arbitrary  condition  of  the  law,  when  on  that  very 
account  the  equitable  jurisdiction  in  many  matters  took  its 
origin,  the  law  itself  has  gradually  and  by  the  progressive 

8  Huntington  v.  Nicoll,  3  Johns.  566 ;  Livingston  v.  Livingston,  6  Johns. 
Ch.  497,  10  Am.  Dec.  353;  Eldridge  v.  Hill,  2  Johns.  Ch.  2G1;  West  v.  Mayor 
of  N.  Y.,  10  Paige,  539;  New  York  &  N.  H.  R.  R.  v.  Schuyler,  17  N.  Y. 
592,  34  N.  Y.  30;  McIIenry  v.  Hazard,  45  N.  Y.  580;  Tliompson  v.  Engle, 
4  N.  J.  Eq.  271;  Hughlett  v.  Harris,  1  Del.  Ch.  349;  Youngblood  v.  Sexton, 
32  Mich.  400,  20  Am.  Rep.  G54;  Mayor  of  York  v.  Pilkington,  1  Atk- 
282,  283,  per  Lord  Hardwicke;  Weale  v.  West  Middlesex,  etc.,  Co.,  1  Jacob 
&  W.  358,  369,  per  Lord  Eldon ;  Whaley  v.  Dawson,  2  Schoales  &  L.  367,  370, 
per  Lord  Rcdcsdale;   Sujxirvisors  v.  Deyoe,  77  N.  Y.  219,  225. 

(a)   See  post,  SS  276-281,  where  this  subject  is  more  fully  discussed. 


227  THE    COJTCUKRENT    JURISDICTION.  §  182 

judicial  legislation  of  its  courts  adopted  and  incorporated 
into  its  jurisprudence,  and  thus  made  strictly  legal,  a  multi- 
tude of  doctrines  and  rules  which  were  originally  purely 
equitable;  and  especially  by  the  invention  of  the  theory  of 
implied  contracts  or  obligations,  and  the  enormous  develop- 
ment of  its  actions  ex  cequo  et  bono, — ''  assumpsit  "  and^ 
"  case," — it  is  now  enabled  to  take  cognizance  of  a  great 
variet}''  of  subject-matters,  primary  rights,  and  causes  of 
action,  and  to  confer  its  pecuniary  remedies,  which  are  at 
least  reasonably  complete  and  sufficient,  under  circum- 
stances and  in  judicial  controversies  which  formerly  would 
come  alone  within  the  equitable  jurisdiction.  In  this  class 
of  cases,  where  the  concurrent  authority  of  the  law  has  re- 
sulted from  the  action  of  the  law  courts  in  adopting  equi- 
table doctrines,  and  not  from  the  compulsory  action  of  the 
legislature,  the  general  principle  operates  without  excep- 
tion, that  the  jurisdiction  of  equity  still  remains  unaffected 
and  unabridged,  extending  to  the  same  rights,  interests,  and 
causes  of  action,  although  they  are  now  legal,  and  granting 
the  same  remedies,  although  they  are  legal  in  their  nature.^ 
and  substantially  identical  with  those  given  by  the  law 
courts.  The  courts  of  law  have  no  power,  by  their  own  ju- 
dicial legislation,  and  without  any  statutory  interference,  to 
abolish,  curtail,  or  modify  the  jurisdiction  which  has  once 
been  acquired  by  equity.  The  equitable  jurisdiction  there- 
fore exists,  although  the  reasons  for  its  exercise  have  nearly 
or  quite  disappeared,  and  the  instances  of  its  exercise  m 
actual  practice  have  perhaps  been  greatly  lessened  in  num- 
ber.^ ^    The  second  mode  of  enlarging  the  jurisdiction  at  law 

1  Collins  V.  Blantern,  2  Wils.  341,  350,  per  Wilmot,  C.  J. ;  Atkinson  v. 
Leonard,  3  Brown  Ch.  218,  224;  Harrington  v.  Du  Chatel,  1  Browii  Ch.  124; 
Bromley  v.  Holland,  7  Yes.  3,  19-21;  Kemp  v.  Prior,  7  Ves.  237,  249,  250; 
East  India  Co.  v.  Boddam,  9  Ves.  464,  468,  469;  Ex  parte  Greenway,  6  VeSo. 
812;  Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  560,  568,  per  Walworth,  C;  King  v. 
Baldwdn,   2   Johns.   Ch,   554,    17   Johns.   384,   8   Am.   Dec.   415;    Eathbone  v.. 

(b)   The  text   is  cited   in   Hoge   v.  fense,    originally    equitable,  has    be- 

Udelity    Loan    &    Trust    Co.     (Va.),  come      legally      cognizable,  and      a 

48  S.  E.  494,  limiting  the  exercise  of  judgment   is    sought   tO'  be  enj<MO«d 

this  principle  in  the  case  where  a  de-  because  of  such  defense. 


§  182  EQUITY   JURISPRUDENCE.  228 

has  been  by  statuta  The  legislature  has  interfered,  and 
has  directly  created  a  jurisdiction  at  law  over  particular 
subject-matters,  which  before  did  not  exist  in  any  degree, 
or  has  amplified  and  extended  it  where  it  was  before  partial 
and  incomplete.  In  these  instances  of  statutory  jurisdiction 
^t  law,  the  general  principle  above  stated  is  not  so  absolute 
in  its  operation,  although  the  statutes,  so  far  as  they  affect 
and  tend  to  abridge  the  pre-existing  jurisdiction  of  equity, 
are  very  strictly  construed.  The  following  conclusions,  how- 
ever, are  sustained  by  the  weight  of  judicial  authority: 
Whenever  the  statutes  conferring  the  new  jurisdiction  upon 
the  law  courts  are  permissive  only,  or  whenever  they  not 
only  contain  no  express  prohibitory  language,  but  also  do 
not  indicate,  from  all  their  provisions  taken  together,  any 
clear  intent  to  restrict  the  equitable  jurisdiction,  that  juris- 
diction remains  unaffected,  and  may  still  be  exercised,  even 
though  the  rights  protected  and  the  remedies  conferred 
have  by  the  statutes  been  made  legal,  and  a  relief  ordinarily 
sufficient,  even  amply  sufficient  and  complete,  may  be  ob- 
tained through  the  actions  at  law.^  *    But  the  effect  depends 

Warren,  10  Johns.  587;  Viele  v.  Hoag,  24  Vt  46;  Wells  v.  Pierce,  27  N.  H. 
503,  512,  513;  Smith  v.  Hays,  1  Jones  Eq.  321;  Miller  v.  Gaskins,  1  Smedea 
&  M.  524;  Burton  v.  Hynson,  14  Ark.  32;  Force  v.  City  of  Elizabeth,  27  N.  J. 
Eq.  408;  People  v.  Houghtaling,  7  Cal.  348,  351;  Heath  v.  Derry  Bk.,  44 
N.  H.  174;  Irick  v.  Black,  17  N.  J.  Eq.  189,  199. 

2  Lane  v.  Marshall,  1  Heisk.  30,  34;  State  v.  Alder,  1  Heisk.  543,  547. 
As  examples,  statutes  authorizing  a  party  to  any  action  to  call  the  opposite 
party  as  a  witness  have  been  held  not  to  deprive  equity  of  its  jurisdiction 
to  entertain  suits  for  discovery:  Cannon  v.  McNab,  48  Ala.  99;  Millsaps  v. 
Pfeiffer,  44  Miss.  805;  per  contra,  Riopelle  v.  Doellner,  26  Mich.  102,  and 
Hall  V.  Joiner,  1  S.  C.  186.  And  it  has  been  held  that  statutes  giving  law 
courts  jurisdiction  to  grant  some  special  relief  in  cases  of  fraud  or  mistake 
did  not  abridge  the  like  jurisdiction  which  had  existed  in  equity:  Babcock 
V.  McCamant,  53  111.  214,  217;  Dorsey  v.  Reese,  14  B.  Mon.  127.  Statutes 
authorizing  defenses  to  be  set  up  in  bar  of  actions  at  law  on  gaming,  illegal, 
and   usurious   contracts   have   not  generally   been   regarded   as   affecting   the 

(c)  The  text  is  cited  to  this  effect  section    5130,    Rev.    Stat.   Ohio,    pro- 

in  Black  v.  Boyd,  50  Ohio  St.  46,  33  viding  that  either  party  may  demand 

N.  E.  207,  holding  that  equity  juris-  a  jury  trial  of  "  issues  of  fact  arising 

•diction  in  matters  of  mutual  and  com-  in  actions  for  the  recovery  of  money 

|)licated  accounts  'ib  not  abrogated  by  only." 


229  THE    C0NCX7RKENT   JUBISDICTION.  §  182 

upon  the  legislative  intent.  If  tlie  statute  is  expressly  pro- 
hibitory upon  the  equity  courts,  or  if  it  shows  a  clear  and 
certain  intent  that  the  equitable  jurisdiction  is  no  longer  to 
be  exercised  over  the  matters  within  the  scope  of  the  enact- 
ment, then  such  jurisdiction  of  equity  in  the  particular  class 
of  cases  must  be  considered  as  virtually  abrogated.'  ^  The 
two  principles  stated  in  this  and  the  preceding  paragraphs 
apply  also  to  the  exclusive  jurisdiction,  as  rules  regulat- 

pre-existing  jurisdiction  of  equity  over  the  same  class  of  agreements:  Day 
V.  Cummings,  19  Vt.  496 ;  Fanning  v.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dee. 
283;  Wistar  v.  McManes,  54  Pa.  St.  318,  327,  93  Am.  Dec.  700;  West  v. 
Beanes,  3  Har.  &  J.  568;  Gough  v.  Pratt,  9  Md.  526;  Thomas  v.  Watts,  9  Md. 
636;  White  v.  Washington's  Ex'r,  5  Gratt.  645;  Lucas  v.  Waul,  12  Smedes 
&  M.  157;  Humphries  v.  Bartee,  10  Smedes  &  M.  282,  295.  Statutes  giving 
jurisdiction  over  matters  of  dower  to  the  probate  court  do  not  interfere  with 
the  jurisdiction  of  equity:  Jones  v.  Jones,  28  Ark.  19.  Statutes  giving  law 
courts  power  to  entertain  actions  on  lost  instruments:  Hardeman  v.  Bat- 
tersby,  53  Ga.  36;  Bright  v.  Newland,  4  Sneed,  440,  442.  Statute  permitting 
action  at  law  to  recover  a  partnership  debt  out  of  estate  of  deceased  partner: 
Waldron  v.  Simmons,  28  Ala.  629.  Statutes  giving  a  garnishment  process 
against  debtors,  etc.,  of  the  principal  debtor  do  not  interfere  with  pre-existing 
equitable  jurisdiction:  King  v.  Payan,  18  Ark.  583,  587,  588;  Grain  v.  Barnes, 
1  Md.  Ch.  151;  Payne  v.  Bullard,  23  Miss.  88,  90,  55  Am.  Dec.  74.  Statutes 
giving  actions  at  law  against  or  in  favor  of  married  women:  Mitchell  v. 
Otey,  23  Miss.  236,  240.  Statute  permitting  assignee  of  a  thing  in  action 
to  sue  at  law  in  his  own  name:  Dobyns  v.  McGovern,  15  Mo.  662,  668. 
Statute  permitting  the  defense  at  law  of  failure  of  consideration  on  a  bond 
or  note,  etc.:  Case  v.  Fishback,  10  B.  Mon.  40,  41.  And  see,  with  regard  to 
the  general  doctrine.  Wells  v.  Pierce,  27  N.  H.  503,  511-513;  Clark  v.  Henry's 
Adm'r,  9  Mo.  336,  339;  Oliveira  v.  University  of  North  Car.,  1  Phill.  Eq.  69, 
70;  Biddle  v.  Moore,  3  Pa,  St.  161,  175,  176;  Wesley  Church  v.  Moore,  10  Pa. 
Bt.  273;  Babcock  v.  McCamant,  53  111.  214,  217. 

8  See  Erie  Railway  v.  Ramsey,  45  N.  Y.  637,  per  Folger,  J.,  as  to  the  eflFect 
of  the  provision  of  the  code  of  procedure  permitting  all  possible  equitable 
defenses  to  be  set  up  in  actions  at  law;  Schell  v.  Erie  Railway,  51  Barb. 
368;  Dorsey  v.  Reese,  14  B.  Mon.  127;  Winfield  v.  Bacon,  24  Barb.  154; 
Savage  v.  Allen,  59  Barb.  291;  Wolcott  v.  Jones,  4  Allen,  367;  Glen  v. 
Fbwler,  8  Gill  &  J.  340;  Brown's  Appeal,  66  Pa.  St.  155;  Patterson  v.  Lane, 
35  Pa.  St.  275;  McGough  v.  Ins.  Co.,  2  Ga.  151,  154,  46  Am.  Dec.  382;  Hall 
V.  Joiner,  1  S.  C.  186;  Askew  v.  Myrick,  54  Ala.  30.  It  has  been  held  that 
when  a  new  legal  right  is  wholly  created  by  statute,  and  a  legal  remedy  for 
its  violation  is  also  given  by  the  same  statute,  equity  has  no  authority  to 
interfere  with  its  reliefs,  even  though  the  statuory  remedy  is  difficult,  un- 
sertain,  and  incomplete:  Coleman  v.  Freeman,  3  Ga.  137;  Janney  v.  Buel, 
55  Ala.  408. 

(d)  Quoted  in  Phipps  v.  Kelly,  12  Oreg.  213,  6  Pac.  707. 


§  183  EQUITY  JUBISPEUDENCB,  230 

ing  tlie  administration  of  strictly  equitable  remedies,  bnt 
they  are  of  far  greater  importance  in  their  application  to 
the  concurrent  jurisdiction^  and  aid  in  fixing  its  extent,  and 
in  determining  when  courts  of  equity  have  power  to  grant 
remedies  strictly  legal,  for  the  purpose  of  maintaining  or 
Tedressiag  legal  primary  rights  and  iuterests. 

§  183.  Effect  of  the  Reformed  Procedure. —  The  reformed 
system  of  procedure  which  now  prevails  in  more  than  half 
of  the  American  commonwealths,  in  England,  and  in  the 
most  important  dependencies  of  the  British  empire,  has 
also  profoundly  affected  the  scope  of  the  concurrent  juris- 
diction, in  one  direction  practically  enlarging,  in  another 
practically  lessening  it.  The  fundamental  principle  of  this 
reformed  system  is,  that  all  distinctions  between  legal  and 
equitable  actions  are  abolished,  the  one  **  civil  action  "  is 
the  single  judicial  means  for  enforcing  all  rights  in  a  court 
clothed  with  both  jurisdictions  of  law  and  of  equity  in  com- 
bination, and  in  this  civil  action  legal  and  equitable  primary 
rights,  causes  of  action,  and  defenses  may  be  united,  and 
legal  and  equitable  remedies  may  be  obtained.  In  applying 
this  principle,  the  following  results  have  been  well  estab- 
lished :  Whenever  a  plaintiff  is  clothed  with  primary  rights, 
both  legal  and  equitable,  growing  out  of  the  same  transac- 
tion or  condition  of  facts  which  thus  constituted  a  cause  of 
action,  and  is  entitled  thereon  to  an  equitable  remedy,  and 
also  to  a  further  legal  remedy  based  upon  the  supposition 
that  the  equitable  relief  is  granted,  and  he  sets  forth  all 
these  facts  in  his  petition,  and  demands  a  judgment  award- 
ing both  species  of  relief,  the  action  will  be  sustained;  the 
court  will,  in  its  judgment,  formally  grant  both  the  equi- 
table and  the  legal  relief.^*    In  these  cases  there  is,  prop- 

1  See  Pomeroy  on  Remedies,  §  78;  Cone  v.  Niagara  Ins.  Co.,  60  N.  Y.  619, 
3  Tliomp.  &  C.  33;  Anderson  v.  Ilnnn,  5  Hun,  79;  Bruce  v,  Kelly,  5  Hun,  229, 
232;  Laub  v.  Buckmiller,  17  N.  Y.  620,  626;  Lattin  v.  McCarty,  41  N.  Y.  107, 

(a)  Cited  to  this  cfTcct  in  Install-       in  Browder  v.  Phinney,  30  Wash.  74, 
ment   B.   A   L.   Co.   v.    VVentworth,    1        70  Pac.  264. 
Waah.  St.  467,  25  Pac.  298;  quoted 


231  THE    CONCURRENT    JURISDICTION.  §  183 

erly  considered,  no  joinder  of  different  causes  of  action; 
there  is  only  the  union  of  different  remedial  rights  flowing 
from  one  cause  of  action.  Another  result  of  the  principle 
differs  from  the  one  just  stated  only  in  matter  of  form.  The 
plaintiff,  as  in  the  last  instances^  is  clothed  with  certain  pri- 
mary rights,  both  legal  and  equitable,  arising  from  the  same 
transaction  or  condition  of  facts,  and  is  entitled  to  some  equi- 
table relief,  and  to  legal  relief  based  upon  the  assumption 
that  the  former  relief  is  awarded ;  he  avers  all  the  necessary 
facts  in  his  complaint  or  petition,  and  demands  both  the  rem- 
edies to  which  he  is  entitled,  or  perhaps  only  the  legal  rem- 
edy. The  court,  instead  of  formally  conferring  the  specific 
equitable  remedy,  and  then  proceeding  to  grant  the  ultimate 
legal  remedy,  may  treat  the  former  as  though  accomplished, 
and  render  a  simple  common-law  judgment,  embracing  the 
final  legal  relief  which  was  the  real  object  of  the  suit,  a  re- 
covery of  money  or  of  specific  real  or  personal  property.^  ^ 

109;  Welles  v.  Yates,  44  N.  Y.  525;  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  Co.,  23  N.  Y. 
357,  359;  Cahoon  v.  Bank  of  Utica,  7  N.  Y.  486;  Broiestedt  v.  South  Side 
R.  R.,  55  N.  Y.  220,  222;  Davis  v.  Lamberton,  56  Barb.  480,  483;  Brown  v. 
Brown,  4  Rob.  (N.  Y.)  488,  700;  Walker  v.  Sedgwick,  8  Cal.  398;  Gray  v. 
Dougherty,  25  Cal.  266;  Henderson  v.  Dickey,  50  Mo.  161,  165;  Guernsey  v. 
Am.  Ins.  Co.,  17  Minn.  104,  108;  Montgomery  v.  McEwen,  7  Minn.  351.  But 
per  contra,  in  Wisconsin:  Supervisors  v.  Decker,  30  Wis.  624,  626-630; 
Noonan  v.  Orton,  21  Wis.  283;  Horn  v.  Luddington,  32  Wis.  73. 

2  See   Pomeroy   on   Remedies,    §    80;    Cone  v.   Niagara   Fire   Ins.    Co.,   60 
N.  Y.  619,  3  Thomp.  «&  C.  33;  Bidwell  v.  Astor  Ins.  Co.,  16  N.  Y.  263,  267 
Phillips  V.  Gorham,  17  N.  Y.  270;   Caswell  v.  West,  3  Thomp.  &  C.  383 
Sternberger  v.  McGovem,  56  N.  Y.  12,  21 ;  McNeady  v.  Hyde,  47  Cal.  481,  483 
N.  Y.  Ice  Co.  V.  N.  W.  Ins.  Co.,  23  N.  Y.  337,  359;  Graves  v.  Spier,  58  Barb. 
349,  383.     See  also  Marquat  v.  Marquat,  12  N.  Y.  336;  Barlow  v.  Scott,  24 
N.  Y.  40,  45;  Cuflf  v.  Dorland,  55  Barb.  481;  Herrington  v.  Robertson,  7  Hun, 
368;  White  v.  Lyons,  42  Cal.  279;  Foster  v.  Watson,  16  B.  Mon.  377,  387; 
Leonard  v.  Rogan,  20  Wis.  540;  Pomeroy  on  Remedies,  §§  81,  82. 

(b)  This  rule  is  well  illustrated  in  lief  demanded   was   damages   for  his 

the  case  of  Browder  v.  Phinney,  30  eviction.     Held,  error  to  dismiss  the 

Wash.  74,  70  Pac.  264.    A  complaint  action  on  the  ground  that  relief  could 

stated   facts   which   would   have   en-  only  be  granted  in  equity.     See  also 

titled   the    plaintiff   to    specific    per-  Westerfelt  v.  Adams,  131  N.  C.  379, 

formance   of   a   contract   to   make  a  42  S.  E.  823    (recovery  in  ejectment 

written  lease,  by  reason  of  his  acts  on  an  equitable  title). 
of  part  performance,  but  the  only  re- 


§  184  EQUITY   JURISPEUDENCE.  232 

It  is  plain  from  the  foregoing  rules  of  the  reformed  proce- 
dure that  a  court  clothed  with  full  equity  powers  may,  by 
means  of  a  suit  equitable  in  its  form,  and  requiring  the  de- 
termination of  equitable  primary  and  remedial  rights,  also 
adjudicate  upon  rights  and  award  remedies  strictly  legal, 
which  might  be  adjudicated  upon  and  awarded  in  an  action 
at  law;  and  this  is  the  essential  feature  of  the  concurrent 
jurisdiction.  While  the  doctrines  of  the  reformed  procedure 
thus  operate  to  enlarge  the  concurrent  jurisdiction,  the  fur- 
ther doctrine  that  equitable  defenses  may  be  set  up  in  actions 
purely  legal  practically  produces  a  contrary  result,  by 
greatly  lessening  the  number  of  instances  in  which  the  inter- 
position of  equity  courts  is  necessary  to  accomplish  the  ends 
of  justice.  In  theory,  however,  this  admission  of  equitable 
defenses  has  been  held  not  to  have  curtailed  or  affected  the 
pre-existing  equity  jurisdiction.  This  question  is  most  inti- 
mately connected  with  the  subject  of  injunctions  to  restrain 
actions  or  judgments  at  law,  and  its  discussion  is  therefore 
postponed  to  a  subsequent  section.'' 

§  184.  The  Principal  Matters  within  the  Concurrent  Juris- 
diction.—  Having  thus  stated  the  doctrines  which  affect  in 
a  general  manner  the  concurrent  jurisdiction  of  equity,  I 
shall  now  proceed  to  enumerate  and  briefly  to  explain  the 
various  classes  of  cases  which  constitute  the  ordinary  and 
well-settled  instances  of  that  jurisdiction.  These  instances 
will  be  arranged  into  groups  according  to  the  nature  of  the 
final  relief  obtained,  which  is,  of  course,  essentially  the 
same  as  that  conferred  at  law  under  like  circumstances, 
namely:  I.  Those  in  which  the  relief  is  substantially  the 
recovery  of  possession,  or  the  establishment  of  a  right  to 
the  possession,  of  land ;  2.  Those  in  which  the  relief  is  the 
recovery  of  possession  or  delivery  of  specific  chattels  or 
written  instruments;  and  3.  Those  in  which  the  relief  is 
pecuniary,  the  recovery  of  or  obtaining  of  money.  This 
classification,  although  generally  practicable,  is  not  abso- 
lutely perfect.    In  a  few  cases  the  particular  exercises  of 

(c)   See  further,  f§  353-358,  1366-1374. 


233  THE   CONCURRENT   JURISDICTION.  §  185 

the  concurrent  equitable  jurisdiction,  depending  upon  the 
same  principles  and  controlled  by  the  same  rules,  may  in- 
clude both  a  recovery  of  specific  chattels  and  of  money,  as 
in  the  enforcement  of  gifts  causa  mortis. 

§  185.  1.  Under  the  first  of  these  classes,  where  the  final 
relief  is  substantially  a  recovery  or  obtaining  possession 
of  specific  portions  of  land,  the  concurrent  jurisdiction  is 
clearly  established,  and  its  exercise  is  a  matter  of  ordinary 
occurrence,  in  suits  for  the  partition  of  land  among  joint 
owners  or  owners  in  common;^  in  suits  for  the  assignment 
or  admeasurement  of  dower  ;^  and  in  suits  for  the  adjust- 
ment of  disputed  boundaries,^  ■  where  some  equitable 
incident  or  feature  is  involved,  and  the  dispute  is  not  wholly 
confined  to  an  assertion  of  mere  conflicting  legal  titles  or 
possessory  rights.**  2.  Under  the  second  class,  where  the 
final  relief  is  substantially  a  recovery  of  chattels,  the  juris- 
diction embraces  suits  to  compel  the  restoration  or  delivery 
of  possession  of  specific  chattels  of  such  a  peculiar,  un- 
common, or  unique  character  that  they  cannot  be  replaced 
by  means  of  money,  and  are  not  susceptible  of  being  com- 
pensated for  by  any  practicable  or  certain  measure  of 
damages,  and  in  respect  of  which  the  legal  actions  of  re- 
plevin,   detinue,    or    trover    do    not   furnish    a    complete 

1  Jeremy's  Eq.  Jur.  303-306;  Fonblanque  on  Equity,  18-22  (35-39)  ;  Agar 
V.  Fairfax,  17  Ves,  533,  2  Lead,  Cas.  Eq.  865-919,  and  notes  thereon;  1 
Spence's  Eq.  Jur,  653,  654. 

2  Jeremy's  Eq.  Jur.  306;  Fonblanque  on  Equity,  22-24  (39,  40) ;  1  Spence'a 
Eq.  Jur.  653. 

3  Jeremy's  Eq.  Jur.  301,  302;  Fonblanque  on  Equity,  21,  22  (37,  38); 
Wake  V.  Conyers,  1  Eden,  331,  2  Lead.  Cas.  Eq.  850-864,  and  note  thereon; 
1  Spence's  Eq.  Jur.  655. 

(a)  New  York  &  T.  Land  Co.  r.  (b)  In  U.  S.  v.  Floumoy,  etc.,  Co., 

Gulf,  W.  T.  &  P.  R.   Co.,   100  Fed.  69    Fed.    886,   it  was   held   that   the 

830,  41  C.  C.  A.  87.    Equity  will  also  United  States,  as  trustee  for  Indians, 

determine  the  location  of  a  passway,  can  maintain  a  bill   to  oust  parties 

when  the  only  question  is  as  to  loca-  occupying  under  illegal  leases  and  to 

tion.      Link   v.    Caldwell,    59    S.    W.  restrain   such   parties   from   inducing 

502,  22  Ky.  L.  Eep.  1041.  the  Indians  to  make  further  leasea. 


§185 


EQUITY   JUEISPRUDENCB. 


234 


remedy.'*  '^  This  particular  exercise  of  tlie  jurisdiction  ex- 
tends, for  like  reason,  to  suits  to  compel  the  delivery  of 
deeds,  muniments  of  title,  and  other  written  instruments, 
the  value  of  which  cannot,  with  any  reasonable  certainty, 
be  estimated  in  money .^"^     The  equitable  jurisdiction  in 

4  Jeremy's  Eq.  Jur.  467-470;  Fonblanque  on  Equity,  31  (48);  Pusey  v. 
Pusey,  1  Vern.  273;  1  Lead.  Caa.  Eq.  1109-1117,  and  note  thereon;  1  Spence'a 
Eq.  Jur.  643,  644. 

5  Jeremy's  Eq.  Jur.  468,  469;  Fonblanque  on  Equity,  43  (60,  61)  ;  1  Lead. 
Cas.  Eq.,  note  to  Pusey  v.  Pusey,  1113. 


(c)  Recovery  of  Specific  Chattels. — 
Thus,  equity  has  allowed  a  bill  for 
the  recovery  of  pen  and  pencil 
sketches  (Lang  v.  Thatcher,  48  App. 
Div.  313,  62  N.  Y.  Supp.  956)  ;  of 
wampum  belts  (Onondaga  Nation  v. 
Thatcher,  29  Misc.  Rep.  428,  61  N.  Y, 
Supp.  1027;  affirmed,  65  N.  Y.  Supp. 
1014)  ;  of  a  cup  won  as  a  prize  (Wil- 
kinson V,  Stitt,  175  Mass.  581,  56 
N.  E.  830)  ;  of  notes,  bond,  mort- 
gage, and  book  accounts  (Bindseil  v. 
Smith,  61  N.  J.  Eq.  654,  47  Atl.  456). 
See  also  Clark  v.  Flint,  39  Mass.  (22 
Pick.)  231,  33  Am.  Dec.  733;  Equi- 
table Trust  Co.  V.  Garis,  190  Pa.  St. 
544,  42  Atl.  1022,  49  Wkly.  Notes 
Cas.  41.  In  Cushman  v.  Thayer  Mfg. 
Jewelry  Co.,  76  N.  Y.  365,  32  Am. 
Rep.  315,  the  jurisdiction  was  main- 
tained to  compel  the  transfer  of  cor- 
porate stock  of  a  peculiar  value  to 
the  true  owner.  In  Dock  v.  Dock, 
180  Pa.  St.  14,  67  Am.  St.  Rep.  617, 
36  Atl.  411,  the  plaintiff  was  allowed 
to  recover  letters  written  by  her  to 
her  son,  and  by  the  son  to  plaintiff. 
The  court  said :  "  In  the  letters 
written  by  her  to  her  son,  she  has  a 
special  property  to  prevent  their  pub- 
lication or  communication  to  other 
persons,  or  use  for  any  illegal  pur- 
pose by  the  party  wrongfully  in  pos- 
session of  them.  The  special  right 
in  these  letters  is  one  that  can  only 
he  a<lfquat»,')y  protected  in  equity,  and 
the   court,    liaving   acquired   jurisdio- 


tion  for  any  part  of  the  substantial 
relief  sought,  will  go  on  and  admin- 
ister full  relief  as  to  all  the  matters 
in  the  bill,  both  the  letters  and  the 
alleged  copies."  It  was  held  that 
slaves  were  property  of  such  a  pe- 
culiar nature  that  a  bill  would  lie  for 
their  specific  recovery.  Murphy  v. 
Clark,  9  Miss.  (1  Smedes  &  M.)  221; 
Hull  V.  Clark,  22  Miss.  (14  Smedes 
&  M.)  187;  Harry  v.  ©lover,  Riley 
Eq.  53,  2  Hill  Eq.  515;  Young  v. 
Burton,  1  McMull.  Eq.  255;  Bobo  v. 
Grimke,  1  McMull.  Eq.  304;  Sims  v. 
Shelton,  2  Strobh.  Eq.  221;  Spend- 
love  V.  Spendlove,  Cam.  &  N.  36.  It 
was  necessary,  however,  that  plain- 
tiff's right  be  unquestionable.  Mar- 
tin V.  Fancher,  21  Tenn.  (2  Humphr.) 
510.  And  no  relief  could  be  had 
when  defendant  did  not  have  posses- 
sion.   Brown  v.  Goolsby,  34  Miss.  437. 

Where  the  law  provides  no  remedy 
whatever,  equity  may  well  take  juris- 
diction. Thus,  where  replevin  will 
not  lie  because  the  goods  are  in  the 
custody  of  a  collector  of  internal  rev- 
enue, a  bill  in  equity  is  the  only  ap- 
propriate remedy.  Pollard  v.  Rear- 
don,  05  Fed.  848,  13  C.  C.  A.  171,  21 
U.  S.  App.  639. 

(d)  Delivery  of  Written  Instrument 
—  The  text  is  cited  and  followed  in 
Bindseil  v.  Smith,  61  N.  J.  Eq.  654, 
47  Atl.  450;  Kelly  v.  Lehigh  Min.  & 
Mfg.  Co.,  98  Va.  405,  81  Am.  St.  Rep. 
730,  36  S.  E.  511.    See  Folflom  v.  Mc- 


235  THE    CONCURRENT    JURISDICTION.  §  186 

these  cases  really  rests  upon  the  fact  that  the  only  relief 
which  the  plaintiff  can  have  is  the  possession  of  the  identical 
thing,  and  this  remedy  cannot  tvith  certainty  be  obtained  by 
any  common-law  action.  In  the  same  class  must  be  placed 
suits,  which  are  maintainable,  under  some  special  circum- 
stances, for  the  partition  of  chattels,  analogous  to  those 
for  the  partition  of  land.* 

§  186.  3."  Under  the  third  general  class,  where  the  final 
relief  is  pecuniary,  or  recovery  or  award  of  money  in  some 
form  or  for  some  purpose  as  the  result  of  the  preliminary 
determination  or  adjustment  of  primary  or  remedial  rights 
which  are  legal,  the  well-settled  instances  of  the  concurrent 
jurisdiction  are  many  in  number  and  varied  in  kind.  The 
following  are  the  most  important  and  the  ones  most  fre- 
quently met  in  actual  practice:  In  the  contract  of  surety- 
ship, and  the  relations  growing  out  of  it  between  sureties 
themselves,  sureties  and  their  principal  and  the  creditor, 
the  equitable  jurisdiction  includes  suits  for  exoneration  and 
for  contribution,  in  the  decision  of  which  the  principle  of 
subrogation  and  marshaling  of  securities,  and  other  equi- 
table doctrines  necessary  to  a  complete  adjustment  of  all 
claims  and  liabilities,  may  be  invoked  and  enforced.*    In 

1  Jeremy's  Eq.  Jur.  517;  Bering  v.  Earl  of  Winchelsea,  1  Cox,  318,  1  Lead. 
Cas.  Eq.  120-188,  and  notes  thereon;  Aldrich  v.  Cooper,  8  Ves.  308,  2  Lead. 
Cas.  Eq.  228,  and  notes  thereon,  1  Spenee's  Eq.  Jur.  661-664. 


Cague,  29  Nebr.  124,  45  N.  W.  269 
Equitable  Trust  Co.  v.  Garis,  190  Pa. 
St.  544,  70  Am.  St.  Rep.  644,  42  Atl 
1022,  44  Wkly.  Notes  Cas.  41;  Dan 
forth's  Adm'r  v.  Paxton,  1  Wash.  St 


N.  W.  812,  a  recovery  was  allowed  of 
certificates  of  land  location.  The 
court  held  that  replevin  would  not 
lie  because  the  certificates  were  here- 
ditaments. 


6,  23  Pac.  801;  Bindseil  v.  Smith,  61  (e)  The  text  is  quoted  in  Zinn  v. 
N.  J.  Eq.  654,  47  Atl.  456,  citing  the  Zinn  (W.  Va.),  46  S.  E.  202,  dissent- 
text  ( written  instrument  of  transfer  ing  opinion.  "  Equity  has  exclusive 
necessary,  and  damages  not  adequate  jurisdiction  of  suits  for  the  partition 
relief)  ;  Scarborough  v.  Scotten,  69  of  personal  property,  even  though  the 
Md.  137,  9  Am.  St.  Rep.  409,  14  Atl.  defendant  denies  plaintiff's  title." 
704  (recovery  of  notes  and  bills;  Robinson  v.  Dickey,  143  Ind.  205,  52 
trover  and  replevin  inadequate).  Am.  St.  Rep.  417,  42  N.  E.  679. 
Equity  may  order  the  conveyance  of  (a)  Cited  with  approval  in  Stock- 
a  patent  obtained  by  fraud.  White  ton  v.  Anderson,  40  N.  J.  Eq.  488,  4 
y.  Jones,  4  Call,  253,  2  Am.  Dec.  564.  Atl.  642. 
In  Walker  v.  Daly,  80  Wis.  222,  49 


§  186  EQUITY   JUEISPRUDENCB.  236> 

the  contract  of  partnership  and  the  relations  arising  there- 
from, the  jurisdiction  embraces  suits  for  contribution,, 
accounting,  and  pecuniary  recovery  necessary  for  the  settle- 
ment of  all  claims  which  may  exist  between  the  partners 
themselves,  or  between  the  partnership  and  its  members 
and  the  firm  and  individual  creditors,  all  claims  in  fact  for 
which  the  law  by  its  actions  gives  no  adequate  remedy.^** 
The  principle  of  contribution,''  and  the  pecuniary  recoveries 
depending  upon  it,  have,  in  the  exercise  of  the  concurrent 
jurisdiction,  a  very  wide  application,  and  are  enforced 
under  a  great  variety  of  circumstances.  The  most  im- 
portant, comprehensive,  and  multiform  remedy  of  the  con- 
current jurisdiction  which  results  in  pecuniary  recoveries 
is  that  of  accounting.^  The  variety  of  its  uses  and  possible 
applications  is  practically  unlimited;  it  can  be  adapted  to 
all  circumstances  and  relations  in  which  an  account  is 
necessary  for  the  settlement  of  claims  and  liabilities,  and 
for  the  doing  full  justice  to  the  litigant  parties.  Among 
the  most  common  instances  in  which  this  remedy  is  em- 
ployed by  courts  of  equity  are  the  ascertaining  and  settle- 
ment  of   claims    and   liabilities    between    principals    and 

2  Jeremy's  Eq.  Jur.  515-517;  2  Lead.  Cas.  Eq.  391-429,  note  to  Silk  v. 
Prime,  1  Brown  Ch.  138,  note;  1  Spence's  Eq.  Jur,  664-667. 

3  Jeremy's  Eq.  Jur.  504r-550;  Fonblanque  on  Equity,  470-473;  1  Spence's 
Eq.  Jur.  649-651. 

(b)  Equity  will  grant  an  account  209,  15  Am.  Rep.  475,  there  was  an 
in  settling  partnership  affairs.  Bel-  agreement  between  two  adjoining 
linger  v.  Lehman,  Durr  &  Co.,  103  owners  to  construct  a  party-wall. 
Ala.  385,  15  South.  600 ;  Irwin  v.  One  refused  to  do  his  part,  whereupon 
Cooper,  111  Iowa,  728,  82  N.  W.  757.  the  other  completed  and  then  sued  for 
In  a  suit  against  members  of  a  part-  contribution.  The  court  said:  "  It  is 
nership  and  a  retiring  member  thereof  claimed  that  the  present  action  is 
to  Buljject  to  execution  property  not  an  equitable  one.  The  fact  that 
fraudulently  withdrawn  by  the  latter,  it  is  brought  for  money  is  not  decisive 
a  mere  personal  judgment  against  on  that  point.  The  real  test  in  such 
him  was  the  proper  form  of  equitable  an  action  is  this:  If  it  be  brought 
relief.  Baily  v.  Hornthal,  154  N.  Y.  for  damages  for  breach  of  contract,  it 
648,  661,  61  Am.  St.  Rep.  045,  652,  49  is  a  case  at  law;  if  it  be  brought  for 
N.  E.  50.  money,  by  way  of  performance  of  tho 

(c)  In   Rinilge  v.   Baker,  57   N.  Y.  contract,  it  is  a  case  in  equity." 


237  THE    CONCURRENT    JT7EISDICTI0N.  §  187 

agents,*  and  between  all  other  persons  standing  in  fiduciary 
relations  to  each  other  ;'^  the  ascertaining  and  adjustment 
of  the  respective  amounts  of  persons  entitled  to  participate 
in  the  same  fund,*^  and  of  the  respective  shares  of  persons 
subjected  to  some  common  liability;  the  ascertaining  and 
adjustment  of  the  shares  of  persons  liable  to  contribute  to 
a  general  average;  the  ascertaining  and  adjustment  of  the 
shares  of  persons  liable  to  contribute  with  respect  to  charges 
of  any  kind  upon  land  or  other  property;  the  appropria- 
tion of  payments;  the  apportionment  of  rents ;^  and  numer- 
ous other  instances  where  a  number  of  persons  are  dif- 
ferently interested  in  the  same  subject-matter,  or  are 
differently  liable  with  respect  to  some  common  object.* 

§  187.  In  the  same  general  class  of  pecuniary  reliefs 
belonging  to  the  concurrent  jurisdiction,  and  united  together 
by  a  tie  of  close  analogy,  are  suits  for  the  recovery  of 
legacies/  suits  for  the  recovery  or  enforcement  of  dona- 
tions causa  mortis,^  and  the  various  suits,  involving  some 
equitable  feature  or  incident,  brought  in  connection  with 
or  in  aid  of  the  administration  of  the  estates  of  deceased 

*  Jeremy's  Eq.  Jur.  513,  514. 

«  Jeremy's  Eq.  Jur.  522,  523,  541-544. 

e  Jeremy's  Eq.  Jur.  506,  512,  519;  1  Spence's  Eq.  Jur.  661-664. 

1  Jeremy's  Eq.  Jur.  105,  537,  548;  1  Spence's  Eq.  Jur.  578-583. 

SSnell'sEq.  138-144. 

(d)  Hunter  v.  U.  S.,  30  U.  S.  (5  diction  where  accounts  are  compli- 
Pet.)  173.  Where  a  party  seeks  to  cated.  Warner  v.  McMullin,  131  Pa. 
reach  a  particular  fund,  he  may  ob-  St.  370,  18  Atl.  1056,  25  Wkly.  Notes 
tain  relief  in  equity.  Smith  v.  Bates  Cas.  157;  Inhab.  of  Oanford  Tp.  v. 
Mutch  Co.,  182  111.  166,  55  N.  E.  69.  Watters,   61   N.   J.   Eq.   248,   48   Atl, 

(e)  Sears  v.  Hotchkiss,  25  Conn,  316;  O'Connor  v.  Henderson  Bridge 
171,  65  Am.  Dec,  557;  Pittsburg,  C.  &  Co.,  95  Ky.  633,  27  S.  W.  251,  983; 
St.  L.  R'y  Co.  V.  Keokuk  &  H,  Bridge  Williams  v,  Allen,  32  N.  J.  Eq.  485 ; 
Co.,  68  Fed.  19,  15  C.  C.  A.  184,  46  Flickinger  v.  Hull,  5  Gill,  60.  Equity 
U.  S.  App.  530;  Tasker  v.  Ford,  64  will  take  jurisdiction  of  mutual  ac- 
N.  H,  279,  8  Atl.  823;  Colthar  v,  counts.  Board  of  Commissioners  of 
North  Plainfield  Tp.,  39  N.  J.  Eq.  Grant  County  v,  McKinley,  8  Okl. 
380;  Meyer  v.  Saul,  82  Md.  459,  33  128,  56  Pac.  1044;  Brewer  v.  Asher,  8 
Atl.  539;  City  of  Apalachicola  v,  Okl.  231,  56  Pac.  714;  Black  v.  Boyd, 
Apalachicola  Land  Co.,  9  Fla.  340,  79  50  Ohio  St,  46,  33  N.  E.  207. 

Am-  Dec.  284.    Equity  will  take  juris- 


§  188  EQUITY    JURISPRUDENCE.  238 

persons.^*  Although  the  administration  of  decedents'  es- 
tates has,  in  this  country,  been  committed  to  courts  of 
probate,  and  the  former  jurisdiction  of  equity  to  entertain 
''  administration  bills  "  for  the  complete  and  final  settle- 
ment of  such  estates  does  not  practically  even  if  nominally 
exist,  still  there  are  many  special  cases  belonging  to  the  con- 
current jurisdiction  in  which  suits  may  be  brought  to  obtain 
pecuniary  recoveries  against  executors  and  administrators, 
in  the  process  of  and  connected  with  their  work  of  ad- 
ministering and  settlement. 

§  188.  In  another  extensive  class  of  suits  brought  to 
obtain  pecuniary  relief,  and  strictly  belonging  to  the  con- 
current jurisdiction,  the  remedial  right  is  occasioned  by  or 
in  some  manner  connected  with  accident,  mistake,  or 
fraud.^*  These  three  matters  play  an  important  part 
throughout  the  entire  equity  jurisprudence;  and  all  cases 
involving  or  in  any  manner  depending  upon  or  growing 
out  of  accident,  or  mistake,  or  fraud,  have  sometimes  been 

8  Jeremy's  Eq.  Jur.  537-541;  1  Spence's  Eq.  Jur.  578-586. 

1  Fraud,  mistake,  and  accident,  being  the  mere  occasions  of  primary  and 
remedial  rights,  are  not  in  any  true  sense  the  grounds  and  basis  of  juris- 
diction; the  primary  rights  and  interests,  and  the  remedial  rights,  of  which 
they  are  the  occasion,  belong  to  both  jurisdictions.  Excepting  the  particu- 
lar case  of  suits  to  recover  the  amounts  due  upon  lost  bonds,  bills,  notes,  etc.^ 
all  the  instances  of  suits  arising  from  or  based  upon  fraud,  mistake  or  ac- 
cident belonging  to  the  concurrent  jurisdiction  might  be  referred  to  some 
other  head  of  that  jurisdiction,  such  as  "  accounting,"  "  contribution,"  and  the 
like. 

§    187,    (a)    The  text  is  cited  in  seldom  arise.    It  is  true  that  the  ab- 

Howell  V.  Morrcs,   127  111.  67,  19  N.  ecnce  of  an  adequate  remedy  at  law  is 

E.   863    (bill   for   accounting   against  generally  a  sufficient  ground  of  equi- 

administrator  of  deceased  trustee).  table  jurisdiction;    but  it  is  equally 

§  188,  (a)  Thus,  where  plaintiflf  true  that  the  existence  of  a  remedy 
seeks  an  abalement  of  tlie  price  of  at  law  cannot  deprive  courts  of  equity 
land  on  the  ground  of  fraud  as  to  of  jurisdiction  in  a  matter  that  comes 
quantity,  equity  may  grant  relief.  within  the  scope  of  their  elementary 
"  Fraud  and  misrepresentation  are  jurisdiction."  Meek  v.  Spracher,  87 
among  the  elementary  grounds  of  Va.  162,  12  S.  E.  397.  This  para- 
equitable  jurisdiction  and  relief.  graph  of  the  text  is  cited  in  Massie'a 
Where  they  exist,  the  question  of  an  Admr.  v.  Hciskell's  Trustee,  80  Va 
'adequate   remedy   at   law'   can   but  789,  801    (mistake  of  fact). 


239  THE    CONCUERENT   JURISDICTION.  §  189 

described  as  belonging  to  the  concurrent  jurisdiction,  since 
courts  of  law  may  also  take  cognizance  of  some  causes  of 
action  or  defenses  arising  from  the  same  sources.  In  the 
classification  which  I  have  adopted,  and  which  is  far  more 
accurate  and  consistent,  all  those  cases  in  which  the  strictly 
equitable  remedies  of  reformation,  re-execution,  cancella- 
tion, and  the  like,  are  granted  on  account  of  mistake,  ac- 
cident, or  fraud  necessarily  come  within  the  exclusive 
jurisdiction.^  As  these  purely  equitable  kinds  of  relief  are 
generally  requisite,  in  order  to  do  complete  justice  to  the 
parties,  where  the  remedial  right  arises  from  or  is  affected 
by  mistake,  accident,  or  fraud,  it  follows  that  the  cases 
depending  thereon,  which  properly  belong  to  the  concur- 
rent jurisdiction,  are  comparatively  few."  In  truth,  mis- 
take, and  especially  fraud,  instead  of  being  particular 
source  of  the  concurrent  jurisdiction,  are  facts  which  affect 
the  causes  of  action  and  reliefs,  the  primarj^  and  remedial 
rights  constituting  the  whole  of  equity  jurisprudence. 

§  189.  There  are  some  other  instances  in  which  the  con- 
current jurisdiction  is  exercised,  because  the  legal  remedy 
is  inadequate,  or  because,  through  the  imperfection  of  the 
procedure  at  law,  a  legal  remedy  would  be  wholly  insuf- 
ficient, if  not  impracticable.^  Among  these  the  most  im- 
portant are  suits  to  recover  rent  under  some  special 
circumstances ;  ^  ^  suits  to  procure  or  compel  a  set-off  which 

a  1  Spence's  Eq.  Jur.  622,  628,  632;  Jeremy's  Eq.  Jur.  359,  366,  383. 
1  Fonblanque  on  Equity,  b.  1,  chap.  3,  §  3,  p.  156   (139). 

§  188,   (b)  The  text  is  cited  to  this  Chosen   Freeholders   of   Essex   Co.   v. 

effect  in  Bickley  v.  Commercial  Bank  Newark  City  Nat.  Bank,  48  N.  J.  Eq. 

of  Columbia,  21   S.  C.  886,  21  S.  E.  51,  21  Atl,  185,  a  county  was  allowed 

886.  to  recover  in  equity  from  a   bank  a 

§  189,   (a)  When  a  factor  deposits  sum  of  money  deposited  by  a  former 

money  collected  as  proceeds  of  sales  county  collector  in  his  own  name. 
for  his  principal  in  a  bank,  the  prin-  §  189,  (b)  "  Rent  is  recoverable  in 

cipal  may  maintain  a  bill  against  the  equity  where  the  remedy  has  become 

bank  to  recover  the  money.    In  such  a  difficult  or  doubtful  at  law,  or  where 

case  there  is  no  legal  remedy  for  the  the  premises  have  become  uncertain." 

principal   against    the   bank.      Union  Livingston  v.  Livingston,  4  Johns.  Ch. 

Stock  Yards  Nat.  Bank  v.  Gillespie,  287,  8  Am.  Dec.  562. 
137  U.  S.  411,  11  Sup.  Ct.  118.     In 


§  189  EQUITY    JURISPRUDENCE.  240 

is  not  admissible  or  possible  under  the  practice  at  law;-* 
suits  by  one  firm  against  another,  when  both  firms  have 
a  common  partner,  and  other  analogous  suits  which  the 
technical  legal  rules,  as  to  parties,  prevented  from  being 
entertained  by  courts  of  law;^  ^  and  under  peculiar  circum- 
stances, recoveries  of  damages  by  way  of  compensation  in 
addition  to,  or  even  in  place  of,  other  equitable  relief.* 


SECTION  IV. 

THE  AUXILIARY  JURISDICTION. 

ANALYSIS. 

§   190.  The  auxiliary  jurisdiction  defined. 
S§   191-209.  Of  discovery. 

§   191.  Definition  and  kinds  of  discovery. 
§   192.  Origin  of,  in  English  and  in  Roman  law. 
§§  193,  194.  Effect  of  modern  legislation;  how  far  discovery  proper  has  been 
abolished  by  statutes. 
§   195.  General  doctrine;  when  discovery  will  or  will  not  be  enforced. 
§§   196,  197.  I.  What  judicial  proceedings,  in  what  courts,  will  be  aided   by 

discovery  in  equity. 
{§   198-200.  II.  The  parties;   their  situation  and  relations  to  each  other,  in 
order  that  a  discovery  may  be  granted. 
§   198.  The  plaintiff. 
§   199.  The  defendant. 
§  200.  A  bona  fide  purchaser. 
|{  201-207.  111.  The    nature,    subject-matter,    and    objects    of   the    discovery 
itself;    of   what   the   plaintiff  may  compel   discovery,   and  the 
defendant  must  make  discovery. 
§  201.  General  doctrine;  of  what  facts  discovery  will  be  compelled. 

8  1  Spence's  Eq.  Jur.  651;  2  Lead.  Cas.  Eq.  1338-1347,  notes  to  Earl  of 
Oxford's  case. 

3  1  Spence's  Eq.  Jur.  641,  642. 

(c)  The  text  is  cited  in  Fleming  v.  (e)  Thus,  where  a  party  after  con- 
Stansell,  13  Tex.  Civ.  App.  558,  30  tracting  to  sell  land,  conveys  it  to  an- 
S.  VV.  504 ;  Farris  v.  McCurdy,  78  Ala.  other,  and  the  legal  remedy  is  in- 
250.  sullicient    because   of   the    Statute   of 

(d)  Thus,  where  the  les.sor  is  also  Frauds,  a  bill  in  equity  for  damages, 
one  of  the  lessees  of  a  joint,  and  not  relying  upon  part  performance  to  take 
several  lease,  the  suit  may  be  main-  the  case  out  of  the  statute,  may  be 
tained  in  equity.  Pelton  v.  Place,  71  maintained.  Jervis  v.  Smith,  1  HoflF, 
Vt.  430,  46  Ail.  63.  Ch.  470. 


241  THE   AUXILIAEY   JURISDICTION.  §    190 

§  202.  01  what  kinds  of  facts  discovery  will  not  be  compelled. 

§  203.  What  is  privileged  from  discovery. 

§  204.  The  manner  in  which  the  defendant  must  make  discovery. 
a  205-207.  Production  and  inspection  of  documents. 

§  208.  IV.  When,  how  far,  and  for  whom  may  the  answer  in  the  dis- 
covery suit  be  used  as  evidence. 

§  209,  How  far  the  foregoing  rules  have  been  altered  by  statute. 
5§  210-215.  Of  the  examination  of  witnesses. 

§  210.  This  branch  of  the  jurisdiction  described. 
§§  211,212.  I.  Suit  to  perpetuate  testimony. 

§  212.  Statutory  modes  substituted. 
§§  213-215.  II.  Suits  to  take  the  testimony  of  witnesses  de  iene  esse,  and  aft 
witnesses  in  a  foreign  country. 

§  215.  Statutory  modes  substituted. 

§  190.  Definition. —  The  auxiliary  jurisdiction  of  equity 
belongs  entirely  to  the  procedure  by  which  rights  are  en- 
forced and  remedies  are  obtained,  and  is  not  in  any  manner 
concerned  with  the  reliefs  themselves  which  are  granted, 
except  so  far  as  reliefs  must  always  be  indirectly  affected 
by  the  procedure.  Its  object,  scope,  and  functions  are 
wholly  confined  to  the  procuring  of  evidence;  and  it  con- 
sists of  special  judicial  methods  by  which,  under  certain 
particular  circumstances,  the  evidence  needed  in  pending  or 
anticipated  litigations  may  be  obtained.  It  is  divided  into 
two  main  branches :  the  first  contains  the  modes  by  which 
the  parties  themselves  are  compelled  to  disclose  facts  and 
to  produce  documents,  and  thus  to  furnish  the  evidence 
needed  by  their  adversaries ;  while  the  second  contains  the 
modes  by  which  evidence  of  witnesses  generally  is  procured 
and  preserved,  under  particular  circumstances,  for  which 
the  common  law  made  no  provision.*  The  rules  of  the 
ancient  common  law  concerning  the  competency  of  witnesses 
were  exceedingly  arbitrary,  and  would  often  work  great 
injustice,  unless  their  defects  had  been  supplied  by  the 
equitable  jurisdiction.  In  the  common-law  courts,  prior  to 
the  modern  statutory  legislation,  a  party  could  not  be  ex- 
amined as  a  witness,  nor  forced  to  make  admissions  in  his 
pleadings,  in  behalf  of  his  adversary;  nor  was  there  any 

(a)  Quoted  in  Winter  v.  Elmore,  88  Ala.  555,  7  South,  250. 

Vol.  1  —  16 


§    191  EQUITY   JURISPRUDENCE.  242 

means  in  the  common-law  procedure  of  compelling  a  party 
to  produce,  or  submit  for  inspection,  or  furnish  copies  of 
any  documents  or  books  which  might  be  in  his  possession  or 
^  under  his  control,  however  important  they  might  be  to  the 
other  party's  cause  of  action  or  defense/  It  was  to  supply 
this  grievous  defect  in  the  ancient  common-law  methods  that 
equity  established  the  first  branch  of  its  auxiliary  juris- 
diction, called  discovery?  In  like  manner  the  ancient  com- 
mon law  only  permitted  the  examination  of  witnesses  at  the 
very  trial  of  a  cause,  and  its  courts  had  no  power  to  take 
testimony  upon  commission  in  anticipation  of  the  trial, 
and  much  less  in  anticipation  of  the  bringing  of  an  action.* 
This  defect  was  supplied  by  equity  in  the  second  branch  of 
its  auxiliary  jurisdiction,  which  provides  for  and  regulates 
the  examination  of  witnesses  de  bene  esse,  and  the  perpetua- 
tion of  evidence.*  I  shall  discuss  these  two  branches 
separately. 

DISCOVERY. 

§  191.  Discovery  Defined.^ —  In  one  most  important  sense 
"  discovery  "  is  not  peculiar  to  and  does  not  belong  to  the 
auxiliary  jurisdiction.  Every  suit  in  equity  brought  to 
obtain  relief  is  or  may  be  most  truly  a  suit  for  discovery: 
for  the  complainant  may  always,  and  generally  does,  by  the 
allegations  and  interrogatories  of  his  bill,  call  upon  and 
force  the  defendant  to  disclose  by  his  answer  under  oath 
facts  and  circumstances  within  his  knowledge  in  support  of 
the  plaintiff's  contention;  and  the  plaintiff  may  perhaps  go 
to  the  hearing,  relying  largely,  and  sometimes  wholly,  upon 
the  evidence  thus  furnished  by  the  compulsory  admissions 
of   the   defendant's   answer.     This    incident   of   chancery 

13  Black.  Com.  381,  382;  Com.  Dig.,  tit.  Chancery,  3,  B;  Jeremy's  Eq.  Jur, 
255 ;  1  Spcnce's  Eq.  Jur.  677. 
2  Ibid. 

a  3  Black.  Com.  383 ;  Jeremy's  Eq.  Jur.  270. 
♦  Jeremy's  Eq.  Jur.  255,  271,  273;  I  Spcnce's  Eq.  Jur.  681. 

(a)  Cited  with  approval  in  Roy-  71  N.  H.  332,  51  Atl.  1075,  57  L.  R.  A. 
noMa  V.   Burgeas  Sulphite   Fibre  Co.,        949,  93  Am.  St.  Rep.  535. 


243  THE    AUXILIAKY    JURISDICTION.  §    191 

pleading,  so  entirely  at  variance  from  the  common-law 
practice,  by  which  the  conscience  of  the  defendant  could  be 
probed,  and  which  was  so  powerful  an  instrument  in  elicit- 
ing the  truth  in  judicial  controversies,  has  been  essentially 
adopted  by  the  reformed  system  of  procedure.  Under  that 
procedure  this  chancery  mode  of  pleading  for  the  purpose 
of  eliciting  facts  as  well  as  presenting  issues  has  been  essen- 
tially applied  to  all  equitable  suits,  except  those  causes 
of  action  in  which  the  defendant's  admissions  might  expose 
him  to  criminal  prosecution,  penalties,  and  the  like.  But 
this  is  not  the  discovery  now  under  consideration.^  Dis- 
covery proper  is,  in  its  essential  conception,  merely  an 
instrument  of  procedure,  unaccompanied  by  any  direct  re- 
lief, but  in  aid  of  relief  sought  by  the  party  in  some  other 
judicial  controversy.  The  suit  for  discovery,  properly 
so  called,  is  a  bill  filed  for  the  sole  purpose  of  compel- 
ling the  defendant  to  answer  its  allegations  and  inter- 
rogatories, and  thereby  to  disclose  facts  within  his  own' 
knowledge,  information,  or  belief,  or  to  disclose  and  pro- 
duce documents,  books,  and  other  things  within  his  pos- 
session, custody,  or  control,  and  asking  no  relief  in  the 
suit  except  it  may  be  a  temporary  stay  of  the  proceedings 
in  another  court  io  which  the  discovery  relates.  As  soon, 
therefore,  as  the  defendant  in  such  suit  has  put  in  his 
answer  containing  a  full  discovery  of  all  the  matters  and 
things  which  he  is  obliged,  according  to  the  principles 
and  doctrines  of  equity  on  the  subject,  to  disclose,  the  object 
of  the  suit  has  been  accomplished,  and  the  suit  itself  is 
ended;  nothing  remains  to  be  done  but  to  use  this  answer 
as  evidence  in  the  judicial  proceeding  to  which  this  dis- 

1  The  distinction  here  pointed  out  should  be  most  carefully  observed,  or 
else  the  whole  subject  will  become  confused  and  uncertain.  Unfortunately  the 
decisions,  especially  the  American,  while  speaking  of  "  discovery,"  have  not 
always  been  careful  to  distinguish  between  the  "  discovery  "  which  is  a  con- 
stant incident  to  the  obtaining  of  relief  in  every  equity  suit,  and  the  "  dis- 
covery "  which  is  a  branch  of  the  auxiliary  jurisdiction,  obtained  in  a  separate 
Buit  without  any  relief.  Rules  and  modes  applicable  alone  to  the  latter  have 
Bometimes  been  spoken  of  as  belonging  to  the  former,  and  vice  versa. 


§    191  EQUITY   JURISPRUDENCE.  244 

'CO very  was  collateral.^  ^  This  branch  of  the  auxiliary  juris- 
diction may  be  invoked,  and  the  suit  in  equity  for  a  dis- 
covery may  be  maintained,  by  the  plaintiff  in  an  action  of 
law  against  the  defendant  therein,  or  by  the  defendant  in 
an  action  at  law  against  the  plaintiff  therein,  in  order  to 
obtain  evidence  material  to  his  cause  of  action  or  to  his 
defense,  as  the  case  may  be,  and  this  is  undoubtedly  its  most 
common  purpose;^  also  by  the  defendant  in  a  suit  in  equity, 
in  the  form  of  a  cross-bill  against  the  complainant  therein, 
in  order  to  obtain  a  disclosure  of  facts  necessary  to  enable 
liim  properly  to  frame  his  answer  to  the  original  bill,  or  to 
obtain  a  disclosure  of  facts  material  as  evidence  on  his 
behalf  at  the  hearing  upon  the  original  bill  and  answer 
thereto  ;■*  and  also,  under  some  circumstances,  by  the  moving 
party  or  petitioner  in  some  proceeding  in  a  court  of  equity 
to  avoid  the  necessity  or  to  escape  the  difficulty  of  procuring 
the  evidence  in  that  proceeding.^  It  is  not,  however,  essen- 
tial to  a  bill  of  discovery  that  it  should  be  the  only  means 

2  Jeremy's  Eq.  Jur.  257,  258;  1  Spence's  Eq.  Jur.  677,  678;  Adam's  Eq., 
6th  Am.  ed.,  20,  marg.  p.  89;  Lady  Shaftesbury  v.  Arrowsmith,  4  Yes.  71; 
Kearney  v.  Jeffries,  48  Miss.  343;  Heath  v.  Erie  R.  R.,  9  Blatchf.  316;  Shot- 
well  V.  Smith,  20  N.  J.  Eq.  79. 

3  Ibid. 

4  See  King  of  Spain  v.  Hallett,  1  Clark  &  F.  333 ;  Prioleau  v.  United  States, 
L.  R.  2  Eq.  659;  United  States  v.  Wagner,  L.  R.  2  Ch.  582,  L.  R.  3  Eq.  724; 
■Columbian  Govt.  v.  Rothschild,  1  Sim.  94;  Millsaps  v.  Pfeiffer,  44  Miss.  805. 

5  Montague  v.  Dudman,  2  Ves.  Sr.  398,  per  Lord  Hardwicke:  "A  bill  of 
discovery  lies  here  in  aid  of  some  proceedings  in  this  court  (i.  e.,  the  court 
of  chancery),  in  order  to  deliver  the  party  from  the  necessity  of  procuring 
evidence;  or  to  aid  in  the  proceeding  in  some  suit  relating  to  a  civil  right 
in  a  court  of  common  law,  as  an  action."  In  an  ordinary  suit  in  equity 
the  complainant  has  no  need  to  file  a  separate  bill  of  discovery;  since  he 
can  always  obtain  all  possible  disclosure  of  material  facts  from  the  defendant 
in  that  same  suit,  by  means  of  his  bill  and  the  defendant's  answer.  But  rules 
hereinafter  stated,  concerning  the  subject-matter  of  the  discovery,  the  mate- 
riality of  the  facts  disclosed  to  the  plaintiff's  case,  what  disclosures  cannot 
be  compelled,  privileged  communications,  the  production  of  documents,  etc., 
*re  generally  applicable  to  the  discovery  sought  by  the  plaintiff  in  a  suit 

(b)  Cited   to  this  effect   in   Ilurri-  documents    in    Reynolds    v.    Burgess 

«ane  Tel.  Co.  v.  Mohlcr,  51  W.  Va.  1,  Sulphite  Fibre  Co.,  71  N.  H.  332,  339, 

41  S,  E.  421.     Cited  to  the  effect  that  51  Atl.  1075,  57  L.  R,  A.  949,  93  Am. 

the  bill  will  lie  to  compel  the  inspec-  St.  Rep.  535,  542. 
tion  of  other  things  than  books  and 


245  THE   AUXILIARY   JURISDICTION,  §    192 

which  the  complainaDt  therein  has  of  procuring  evidence 
in  support  of  his  collateral  cause  of  action  or  defense; 
that  is,  it  is  not  necessary  that  the  complainant  should 
otherwise  be  destitute  of  proof  or  of  the  means  of  obtain- 
ing it.  The  bill  for  a  discovery  is  proper,  either  when 
the  complainant  therein  has  no  other  proof  than  that  which 
he  expects  to  elicit  by  its  means  from  the  defendant,  or 
when  he  needs  the  matters  thus  disclosed  to  supplement 
and  aid  other  evidence  which  he  furnishes;®  or  indeed 
whenever  the  court  can  fairly  suppose  that  facts  and  cir- 
cumstances discovered  by  means  of  the  bill  can  be  in  any 
way  material  to  the  complainant  therein  in  maintaining  his 
cause  of  action  or  defense  in  a  suit."^  *^ 

§  192.  Its  Origin. —  The  practice  of  the  court  of  chancery 
to  *'  probe  the  conscience  "  of  the  defendant,  and  to  com- 

for  relief,  as  well  as  to  the  discovery  sought  in  a  separate  "  suit  for  discovery  ' 
alone;  many  of  the  decisions  cited  to  illustrate  these  rules  were  rendered  in 
suits  for  relief.  The  same  is  true  under  the  new  practice  now  prevailing  in 
England  and  in  many  of  our  states,  by  which  interrogatories  filed  by  either 
party  to  a  pending  suit  have  been  substituted  in  place  of  the  discovery  by 
means  of  the  bill  and  answer  in  the  same  suit,  or  by  means  of  a  bill  and 
answer  in  a  separate  "  discovery  suit." 

6  Montague  v.  Dudman,  2  Yes.  Sr.  398;  Finch  v.  Finch,  2  Ves.  Sr.  492; 
March  v.  Davidson,  9  Paige,  580;  Many  v.  Beekman  Iron  Co.,  9  Paige,  188; 
Leggett  V.  Postley,  2  Paige,  599;  Deas  v.  Harvie,  2  Barb.  Ch.  448;  Seymour 
v.  Seymour,  4  Johns.  Ch.  409;  Gelston  v.  Hoyt,  1  Johns.  Ch.  54;  Metier  v. 
Metier,  19  N.  J.  Eq.  457;  Turner  v.  Dickerson,  9  N.  J.  Eq.  140;  Baxter  v. 
Earner,  7  Ired.  Eq.  239. 

7  Peck  V.  Ashley,  12  Met.  478;  Thomas  v,  Tyler,  3  Younge  &  C.  255.  The 
following  are  some  of  the  most  recent  instances  of  the  exercise  of  this  juris- 
diction by  the  American  equity  courts:  Continental  Life  Ins.  Co.  v.  Webb, 
54  Ala.  688;  Merchants'  Nat.  Bank  v.  State  Nat.  Bank,  3  Cliff.  201;  Hop- 
pock  V.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  286;  French  v.  Rainey,  2  Tenn.  Ch. 
640;  French  v.  First  Nat.  Bank,  7  Ben.  488;  Kearney  v.  Jeffries,  48  Miss. 
343;  Heath  v.  Erie  R.  R.,  9  Blatchf.  316;  Buckner  v.  Ferguson,  44  Miss.  677; 
Shotwell  V.  Smith,  20  N.  J.  Eq.  79. 

(c)  See  also  Attorney-General  v.  not  necessary  to  aver  that  the  dis- 
Gaskill,  L.  R.  20  Ch.  Div.  519.  covery  is  absolutely  necessary  or  in- 
"  While  it  is  necessary  in  a  bill  of  dispensable  for  that  purpose.  It  will 
discovery  to  show  that  the  discovery  be  sufficient  to  state  and  show  that  it 
is  material  to  the  support  of  the  is  material  evidence.  Thus,  for  ex- 
party's  claim  asking  the  same  and  the  ample,  it  is  not  necessary  to  allege  in 
manner  in  which  it  ia  material,  it  is  the  bill  that  the  plaintiff  has  no  other 


§    192  EQUITY   JURISPEUDENCK.  246 

pel  liim  to  make  full  disclosure  of  matters  within  his  knowl- 
edge in  all  suits  brought  for  relief,  was  coeval  with  the  es- 
tablishment of  the  court  itself,  and  was  one  of  the  principal 
means  by  which  it  rapidly  extended  its  general  jurisdiction. 
The  auxiliary  jurisdiction  to  compel  discovery  alone  with- 
out relief,  in  aid  of  proceedings  at  law,  was  somewhat  later 
in  its  origin,  but  still  was  exercised  at  an  early  day.  I  con- 
dense a  brief  account  of  its  history  from  the  learned  treatise 
of  Mr.  Spence.^  In  the  reign  of  Edward  IV.  it  was  held 
that  the  donee  in  tail  might  have  discovery  of  a  deed,  in 
possession  of  another,  in  aid  of  his  title.^  As  early  as  the 
reign  of  Henry  VI.  chancery  entertained  jurisdiction  to 
compel  a  discovery  when  it  was  needed  to  sustain  an  action 
at  law,  without  reference  to  any  equitable  question.  From 
his  reign  onwards,  bills  were  entertained  expressly  for  dis- 
covery, to  enable  the  plaintiff  to  commence  or  prosecute 
proceedings  at  law.^    In  the  reign  of  Queen  Elizabeth  the 

1  See  1  ypence's  Eq.  Jur.  677-680. 

2  1  Spnnce's  Eq.  Jur.  678 ;  9  Edw.  IV.  41 ;  Bro.  Abr.,  tit.  Conscience,  3. 
8  1  Spence'3  Eq.  Jur.  678;  30  Henry  VI.  26;   Cary,  21. 

witness  or  evidence  to  establish  the  to    prosecute   or    defend   the    same;" 

facts  of  which  the  discovery  is  sought,  Gorman  v.  Banigan,  22  R.  1.  22,  46 

for  he  is  entitled  to  it,  if  it  be  merely  Atl.  38.     Where  the  facts  are  within 

cumulative      evidence      of       material  plaintiflf's    knowledge,    as    where    he 

facts;"    Russell    v.    Dickeschied,    24  seeks   discovery  and   account   from   a 

W.  Va.  61.     "  When  the  plaintiff  has  corporation    to    whose    books    he    has 

any  case  to  make  out,  he  has  a  right  access,    a    discovery    will    be    denied; 

of    discovery    of    anything    that   may  Kane  v.  Schuylkill  Fire  Ins.  Co.,  199 

assist  him  in  proving  his  case,  or  even  Pa.  St.  205,  48  Atl.  989.     Where  the 

the  smallest  title  of  it;"    Jenkins  v.  bill  is  for  discovery  and  relief,  it  has 

Busliby,  35  Law  J.  Ch.  400;  Reynolds  been  held  that  it  must  allege  that  the 

V.   Burgess     Sulphite    Fibre     Co.,   71  facts  are   known  to  no  other  person 

N.  H.  332,  51   Atl.   1075,  93  Am.  St.  tlian     the     defendant;      Vennum     v. 

Rep.  535,  57  L.  R.  A.  949.     It  is  suffi-  Davis,  35  111.  568.     But  such   an  al- 

cicnt  if  it  appears  that  the  discovery  legation    is    not    necessary    when    the 

is  "  indisponsiible  to  justice;"  Hand-  bill  is  filed  purely  for  discovery  in  aid 

ley  V.   Ilimn,   84   Ala.   GOO,   4   South.  of  a   suit   at   law;    Robson  v.   Doyle, 

725.     "He  must  also  show  that  he  is  191  HI.  566,  61  N.  E.  435;  Marsh  v. 

justly  entitled  thereto,  as  evidence  in  Davison,    9    Paige,    580;    Cecil    Nat. 

connection  with   the  preparation  and  Bank    v.    Tliurber,    59    Fed.    913,    8 

trial  of  his  case,  and  that  such  ovi-  C.  C.  A.  365,  8  U.  S.  App.  496. 
dence  is  necessary  to  enable  him  fully 


247  THE   AUXILIAEY   JURISDICTION.  §    193 

court  of  chancery  was  accustomed  to  retain  jurisdiction  of 
cases  for  the  decision  of  purely  legal  questions,  where  the 
parties  had  resorted  to  the  court  simply  for  the  purposes 
of  discovery.  According  to  Lord  Coke,  this  practice  led 
the  common-law  judges,  in  a  case  referred  to  them  by  the 
chancellor,  to  adopt  a  solemn  resolution  by  way  of  protest, 
and  their  action  caused  the  chancellor  to  abridge  this  exer- 
cise of  the  equity  jurisdiction.*  The  limit  thus  placed  upon 
the  jurisdiction  to  grant  relief,  where  the  discovery  is  con- 
cerning matters  purely  legal,  and  no  equitable  features  or 
incidents  are  involved  in  the  controversy,  has  been  generally 
recognized  and  adopted  by  the  subsequent  English  chan- 
cellors. While  the  principles  as  to  discovery  were  thus  set- 
tled at  an  early  day,  the  system  of  rules  which  control  its 
exercise  was  established  by  the  chancellors  subsequent  to 
Lord  Nottingham.  The  fundamental  conception  of  this 
auxiliary  jurisdiction  to  obtain  evidence  by  means  of  a  suit 
for  discovery  was  undoubtedly  borrowed  from  the  Roman 
law  procedure.  That  law  had  provided  actiones  mterroga- 
torice.  by  which  defendants  were  obliged  to  make  answer 
under  oath  to  questions  propounded,  and  actiones  ad  ex- 
hibendum  in  which  the  decree  compelled  the  defendant  to 
produce  some  specific  thing.  The  former  class  had,  as  it 
appears,  become  obsolete  in  the  time  of  Justinian;  but  the 
general  purposes,  objects,  and  methods  of  the  proceeding 
are  described  in  the  treatises  and  compilations  of  the  Roman 
law  which  have  survived  to  our  own  time.^ 

§  193.  Effect  of  Modern  Statutes.*—  Modem  legislation  has 
greatly  interfered  with  the  practical  exercise  of  the  aux- 
iliary jurisdiction  for  a  discovery,  by  introducing  simpler 

4  1  Spence's  Eq.  Jur.  678,  679 ;  4  Inst.  84,  85,  The  resolution,  so  far  as 
touches  this  subject,  was  as  follows:  "When  any  title  of  freehold  or  other 
matter  determinable  by  the  common  law  comes  incidentally  in  this  court  (i.  e., 
of  chancery),  the  same  cannot  be  decided  in  chancery,  but  ought  to  be  referred 
to  the  trial  of  the  common  law." 

B  Phillimore's  Private  Law  among  the  Romans,   182. 

(a)  Cited  with  approval  in  Handley  Chapman  v.  Lee,  45  Ohio  St.  356,  13 
▼.  Hiffin,  84  Ala.  600,  4  South.  725;        N.  E.  736. 


§    193  EQUITY   JURISPEUDENCB.  248 

and  more  efficacious  methods  in  its  stead,  and  by  thus  ren- 
dering a  resort  to  it  unnecessary  and  even  inexpedient.  The 
important  question  is,  whether  the  suit  for  a  discovery 
alone,  without  relief,  has  been  directly  or  indirectly  abol- 
ished or  superseded  by  the  recent  statutes.  English  stat- 
utes, passed  not  many  years  since,  gave  full  power  and 
authority  to  any  party  to  an  action  or  proceeding  at  law  to 
examine  his  opponent  under  oath  as  a  witness;^  and  full 
power  to  the  common-law  courts  to  compel  any  party  to  an 
action  to  produce  documents.^  These  permissive  statutes, 
it  was  held,  did  not  interfere  with  the  equity  jurisdiction  for 
discovery  in  aid  of  a  cause  of  action  or  defense  at  law.' 
More  recent  legislation  of  Parliament  has  gone  much  fur- 
ther. The  supreme  court  judicature  act  of  1873,  which 
consolidated  all  the  superior  courts  into  one  tribunal  having 
jurisdiction  of  all  possible  matters,  except  those  purely 
ecclesiastical,  which  abolished  the  distinction  between  legal 
and  equitable  actions,  and  permitted  all  legal  and  equitable 
causes  of  action,  defenses,  and  remedies  to  be  united  in 
one  proceeding,  and  which  provided  for  the  examination 
of  either  party  upon  interrogatories  at  the  instance  of  his 
adversary,  and  for  the  production  and  inspection  of  docu- 
ments by  either  party  at  the  requirement  of  the  other,  in 
any  action,  has  superseded  and  practically  put  an  end  to, 
even  if  not  directly  abrogated,  the  suit  for  a  discovery  as 
a  branch  of  the  auxiliary  jurisdiction  of  equity/ "    Under 

i  14  &  15  Vict.,  chap.  99,  §  2. 

2  17  &  18  Vict.,  chap.  125,  §§  51,  52. 

8  British  Empire  Ship.  Co.  v.  Somes,  3  Kay  &  J.  433;  Lovell  v.  Galloway, 
17  Beav.  1.  This  conclusion  is  reached  by  applying  the  general  doctrine  that 
equity,  having  once  acquired  jurisdiction  over  a  given  subject-matter,  cannot 
lose  that  jurisdiction  by  the  mere  fact  that  the  common-law  courts  have 
also  become  invested  with  the  same  powers. 

4  Supreme  Court  of  Judicature  Act  of  1873,  3G  A  37  Vict.,  chap.  66,  Sched- 
ule, Rules  of  Procedure,  rules  25-27.  These  rules  provide  that  in  any  action 
cither   party  may  obtain  discovery   from   the  other  on  oath   upon   interroga- 

(b)  As  to  the  effect  of  this  statute  bona  fide  purchaser  in  aid  of  a  legal 
upon  the  equitable  rule  that  discovery  action,  see  post,  §  200.  In  Attorney- 
would     not    be    oompollcd    against    a        General  v.  Oaskill,  L.  R.  20  Ch.  Div,. 


249  THE    AUXTLIAEY    JUEISDICTION.  §    193 

this  new  method  of  obtaining  discovery  from  the  opposite 
party  in  any  kind  of  action,  and  of  compelling  the  produc- 
tion of  documents  by  means  of  interrogatories  filed  during 
the  pendency  of  the  action  by  either  the  plaintiff  or  the  de- 
fendant, it  is  held  that  all  the  doctrines  and  rules  concerning 
the  subject-matter  of  disco ver>^  and  concerning  the  docu- 
ments whose  production  can  be  compelled,  which  had  been 
established  by  courts  of  equity,  are  still  in  force,  and  con- 
trol the  same  matters  in  the  new  procedure.' ''  Similar 
modes  of  procuring  evidence  from  the  opposite  party  by 
means  of  interrogatories  have  been  adopted  by  statute  in 
several  of  our  states,  although  in  none  of  them  does  the  mat- 
ter seem  to  be  so  carefully  regulated  and  so  efficacious  as 
in  England.  Passing  to  the  legislation  of  this  country,  the 
reformed  procedure,  which  was  first  enacted  in  the  Code 
of  Civil  Procedure  of  New  York  in  184.8,  and  has  now  ex- 
tended to  more  than  half  the  states  and  territories  of  this 
Union,  and  which  is  identical  in  its  fundamental  principles, 
doctrines,  and  methods  with  the  English  supreme  court  of 
judicature  act,  has  in  like  manner  superseded  and  practi- 
cally, at  least,  destroyed  the  equitable  suit  for  discovery 
without  any  other  relief,  wherever  the  system  prevails.    In 

tories;  and  that  the  court  may  order  any  party  to  discover,  produce,  and 
permit  inspection  of  any  documents,  etc.,  in  his  possession  or  under  his  con- 
trol, etc.  In  other  words,  everything  wliich  could  be  done  by  a  bill  for 
discovery  can  be  accomplished  in  a  more  simple,  direct,  and  speedy  mode 
prescribed  by  the  statute.  The  essential  principles  of  this  statute  and  of 
the  system  which  it  established  for  England  are,  as  I  have  before  stated, 
identical  with  the  principles  and  methods  of  the  reformed  procedure  pre- 
vailing in  more  than  half  of  the  American  commonwealths. 

6  Anderson  v.  Bk.  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644 ;  Cashin  v.  Crad- 
dock,  L.  R.  2  Ch.  Div.  140;  Hoffman  v.  Postell,  L.  R.  4  Ch.  673. 

519,  the  right  of  discovery  as  exist-  within   his   own   knowledge,  and   are 

ing  in  the  court  of  chancery  was  held  within  the  knowledge  of  the  opposite 

still   to  exist  except  so  far  as   it  is  party,  but  also  for  the  purpose  of  ob- 

modified  by  the  judicature  acts  and  taining  from  the  opposite  party  ad- 

the  general  orders,  and  a  party  still  missions  which  will  make  it  unneces- 

has  a  right  to  exhibit  interrogatories,  sary   for  him  to   enter  into   evidence 

not  only  for  the  purpose  of  obtaining  as  to  the  facts  admitted. 
from  the  opposite  party  information  (c)  See    also    Attorney-(jeneral    v. 

as  to  material   facts,   which   are  not  Gaskill,  L.  R.  20  Ch.  Div.  519. 


§193  EQUITY   JURISPRUDENCE.  250 

some  of  these  states  the  suit  for  "  discovery,**  properly  so 
called,  is  expressly  abolished  by  the  statute;  and  in  all  of 
them  it  is  utterly  inconsistent  with  both  the  fundamental 
theory  and  with  the  particular  doctrines,  rules,  and  methods 
of  the  reformed  procedure.  In  the  other  commonwealths, 
where  the  common-law  and  the  equity  jurisdictions  are  still 
preserved  distinct  from  each  other,  whether  possessed  by 
the  same  court,  or  as  in  a  very  few  states,  by  separate 
tribunals,  the  statutes  permit  the  parties  to  all  civil  actions 
and  proceedings,  both  at  law  and  in  equity,  to  testify  in  their 
own  behalf,  and  to  be  examined  as  witnesses,  in  the  ordinary 
manner,  on  behalf  of  their  adversaries ;  and  have  also  pro- 
vided summary  and  simple  modes  for  compelling  the  dis- 
closure and  production  and  inspection,  by  the  parties  to 
any  action,  of  documents,  books,  and  the  like  material,  to 
the  opposite  party,  for  maintaining  his  cause  of  action  or 
defense.  Notwithstanding  these  great  changes,  made  by 
statutes,  which  seem  to  remove  the  very  foundation  for  any 
intei^osition  by  equity,  it  has  generally  been  held  that  the 
legislature  has  not  abridged  nor  affected  the  auxiliary  equi- 
table jurisdiction  to  entertain  suits  for  mere  discovery  of 
evidence  and  production  of  documents,  and  that  such  equi- 
table jurisdiction  still  exists,  where  not  expressly  abolished 
by  the  statutes.®"*     This  conclusion,  however,  is  not  uni- 

6  Cannon  v.  McNab,  48  Ala.  99;  Millsaps  v.  Pfeiffer,  44  Miss.  805;  Shot- 
well  V.  Smith,  20  N.  J.  Eq.  79.  And  see  also  Buckner  v.  Ferguson,  44  Miss. 
677;  Kearney  v.  Jeffries,  48  Miss,  343;  Continental  Life  Ins.  Co.  v.  Webb,  54 
Ala.  G88;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  286;  French  v.  First 
National  Bk.,  7  Ben.  488. 

(d)  Auxiliary     Jurisdiction      not  Am.  Dec.  371;  Elliston  v.  Hughes,  1 

Abridged. —  The  text  is  cited  to  this  Head    (Tenn.),   227;    Grimes   v.   Hil- 

effect   in    Wright   v.   Superior   Court,  liary,  38  111.  App.  246;   Kendallville 

1:50  Cal.  409,  73  Pac.  145,  in  the  dis-  Refrigerator  Co.  v.  Davis,  40  111.  App. 

Benting   opinion   of    Shaw,   J.,    where  616;   Amos  v.  N.  J.  F.  Co.,  12  N.  J. 

the    following    cases    are    also    cited,  Eq.   68,   72   Am.   Dec.   385.     See  fur- 

among  otliors:      Post  v.  Toledo,  etc.,  ther  Lanccy  v.  Randlett,  80  Me.  169, 

Co.,  r44  Mass.  341,  11  N.  E.  540,  59  13    Atl.    686,    6    Am.    St.    Rep.    169; 

Am.   Rop.    80;    Union   Passenger   R'y  Ilandley    v.    HifTin,    84    Ala.    600,    4 

Co.  V.  Mayor,  71  Md.  238,  17  Atl.  933;  South.  725;  Shackelford  v.  Bankhead, 

Uowell  V.  A.Hlimoro,  9  N.  J.  Eq.  91,  57  72  Ala.  476;   Russell  v.  Dickeschied, 


251 


THE    AUXILIARY   JURISDICTION. 


§  193 


versa!.  In  some  cases  it  has  been  held  that  the  legislation, 
by  abolishing  all  the  grounds  upon  which  the  suit  for  a  dis- 
covery was  based,  has  necessarily  abrogated  the  jurisdiction 
itself  J®     This  abridgment  of  the  technical  "discovery,' 

7  Riopelle  v.  Doellner,  26  Mich.  102.  To  the  same  effect,  also,  is  Heath  v. 
Erie  R.  R.,  9  lilatchf.  316.  In  a  suit  in  equity  a  cross-bill  was  filed  praying 
•discovery  and  relief.  From  certain  proceedings  and  stipulations  of  the  par- 
ties, the  court  held  that  as  a  bill  for  relief  this  cross-bill  was  unnecessary  and 
nugatory,  so  that  it  was  only  a  cross-bill  for  a  discovery  without  relief. 
With  respect  to  such  a  bill^  the  court  held  that  the  statutes  of  Congress,  act 
of  July  6,  1862,  section  1  ( 12  U.  S.  Stats,  at  Large,  p.  588),  and  act  of 
July  2,  1864  (13  U.  S.  Stats,  at  Large,  p.  351),  permitting  parties  to  be 
witnesses,  had  necessarily  abrogated  the  equity  suit  for  a  mere  discovery 
-without  relief. 


24  W.  Va.  61 ;  Kelley  v.  Boettcher,  85 
Fed.  55,  29  C.  C.  A.  14;  Indianapolis 
Gas  Co.  V.  City  of  Indianapolis,  90 
Fed.  196;  Miller  v.  U.  S.  Casualty  Co., 
6?  N.  J.  Eq.  110,  47  Atl.  509;  Wood 
V.  Hudson,  96  Ala.  469,  11  South. 
■030;  Hurricane  Tel.  Co.  v.  Mohler,  51 
W.  Va.  1,  41  S.  E.  421;  Colgate  v. 
■Compagnie  Francaise  du  Telegraphe, 
23  Fed.  82;  Clark  v.  Rhode  Island 
Locomotive  Works,  24  R.  I.  307,  53 
Atl.  47;  Reynolds  v.  Burgess  Sulphite 
Fibre  Co.,  71  N.  H.  3Z2,  346,  51  Atl. 
1075,  93  Am.  St.  Rep.  535,  550,  57 
L.  R.  A.  949  (where  discovery  is  es- 
sential prior  to  the  trial ) .  A  bill 
for  discovery  against  a  corporation 
has  been  allowed,  although  all  the 
officers  are  by  statute  made  com- 
petent witnesses  for  either  party. 
The  court,  in  Continental  Nat.  Bk. 
V.  Heilman,  66  Fed.  184,  speaking  of 
an  objection  to  the  jurisdiction,  said: 
"  But  whatever  force  this  suggestion 
might  be  entitled  to  where  a  discovery 
is  sought  from  a  natural  person,  it 
has  none  in  such  a  case  as  the  present, 
for  the  corporation  cannot  be  sworn 
and  examined  as  a  witness ;  and  it  is 
apparent  that  in  many  cases  a  dis- 
covery by  a  corporation  may  be  im- 
portant to  attain  the  ends  of  justice." 
To  same  effect,  see  Indianapolis  Gas 


Co.  V.  City  of  Indianapolis,  90  Fed. 
196. 

(e)  Jurisdiction  Abridged  or  Abro- 
gated.—  The  text  is  cited  to  this  ef- 
fect in  Turnbull  v.  Crick,  63  Minn. 
91,  65  N.  W.  135.  The  court  said: 
"A  bill  of  discovery  was  born  of  neces- 
sity, for  there  was  then  no  other  way 
by  which  a  party  to  an  action  could 
secure  the  benefit  of  facts  within  the 
exclusive  personal  knowledge  of  his 
adversary,  or  of  documents  in  his  ex- 
clusive possession ;  but  the  remedies 
provided  by  our  Civil  Code  and  other 
statutes,  giving  a  party  the  right  to 
call  his  adversary  as  a  witness,  and 
compel  the  production  of  books  and 
documents,  have  swept  away  every 
ground  and  reason  for  a  bill  of  dis- 
covery. .  .  .  These  remedies,  fur- 
nished by  our  Reform  Code  of  Pro- 
cedure, are  not  simply  cumulative, 
but  abrogate  bills  of  discovery  and 
the  practice  and  procedure  in  the 
former  court  of  chancery,  so  far  as 
they  are  inconsistent  therewith."  The 
text  is  also  cited  in  Wright  v.  Su- 
perior Court,  139  Cal.  469,  73  Pac. 
145,  opinion  of  Van  Dyke,  J.,  but  the 
court  left  the  question  undecided.  It 
is  sometimes  said  that  the  general 
rule  is  that  discovery  will  not  be 
compelled  from  any  persons  who  can 


§  194 


EQUITY   JURISPRUDENCE. 


252 


it  should  be  carefully  remembered,  does  not  extend  to  the 
discovery  or  comj)elIing  defendants  to  malve  admissions  or 
disclosures  by  means  of  the  pleadings,  in  suits  brought  for 
relief/  In  some  of  the  states,  however,  which  still  retain 
the  ancient  common-law  and  equitable  jurisdictions,  the  ob- 
taining evidence  by  means  of  interrogatories  filed  in  the 
action  by  either  party,  instead  of  by  means  of  answers  to 
allegations  and  questions  contained  in  the  bill  or  cross-bill, 
—  substantially  in  accordance  with  the  present  English  pro- 
cedure,—  has  been  provided  for  by  recent  statute;  and  this 
statutory  change  may  have  abrogated  the  mode  of  discovery 
as  an  incident  and  part  of  the  pleadings  in  suits  for  relief, 
even  though  it  may  not  have  abolished  the  suit  for  a  dis- 
covery alone  without  relief. 

§  194.*    It  follows  from  the  foregoing  statements  that  the 
suit  for  a  discovery,  as  a  branch  of  the  auxiliary  jurisdic- 


be  made  witnesses  in  the  cause  in  aid 
of    which    the    discovery    is    sought 
Reddinglon  v.  Lanahan,  59  Md.  429 
Rindskopf    v.    Platto,    29    Fed.    130 
Babbott   V.   Tewksbury,   46    Fed.   86 
Ex  parte  Boyd,  105  U.  S.  657 ;  Brown 
V.  M'Donald,  130  Fed.  964,  reviewing 
many   cases    in    the    Federal    courts ; 
London  Guarantee  &  Accident  Co.  v. 
Doyle,  130  Fed.  719.     In  Michigan  it 
is  held  that  "  since  parties  have  be- 
come   general    witnesses    under    our 
statutes,  a  bill  of  discovery  will  not 
lie  where  the  facts  sought  to  be  dis- 
covered are  within  the  knowledge  of 
any  witness;"    MoCreery  v.  Bay  Cir- 
cuit Judge,  93  Mich.  403,  53   N.  W. 
613;   Slielden  v.  Walbridge,  44  Mich. 
251,  6  N.  W.  681.     Hence  such  a  bill 
is  no  longer  allowable.     In  Nebraska 
it  is  held  that  "under  the  Code,  dis 
covery  has  ceased  to  be  one  of  the  ob 
jects   sought   in   a   court   of   equity.' 
Lamaster    v.    Scoftcld,    5    Nebr.    148 
Kniil  V.  Pierce  County,  44  Nobr.  584 
02  N.  \V.  1006.    oee  also  Chapman  v 
Leo,  45  f)}iio  St.  356,   13  N.   E.  736 
rrcsLoii  v.  .SiuiLli,  26  Fed.  884;  Paton 


V.  Majors,  46  Fed.  210;  Safford  v. 
Ensign  Mfg.  Co.,  (C.  C.  A.)  120  Fed. 
480  (dictum)  ;  Ducktown  Sulphur, 
Copper  &  Iron  Co.  v.  Fain,  109  Tenn. 
56,  70  S.  W.  813. 

(f)  This  sentence  was  quoted  with 
approval  in  Le  May  v.  Baxter,  11 
Wash.  649,  40  Pac.  122.  This  point 
was  directly  decided  in  the  case  of 
Smythe  v.  Henry,  41  Fed.  715,  where 
discovery  was  prayed  in  a  suit  for 
both  equitable  relief  and  discovery. 
The  court  said,  in  answer  to  an  ob- 
jection that  full  power  to  examine 
witnesses  had  been  conferred  upon 
the  law  courts:  "  The  mere  fact  that 
statutes  have  conferred  upon  courts 
of  law  the  power  to  compel  parties  to 
the  record  to  testify  as  witnesses  does 
not  deprive  a  party  in  courts  of  the 
United  States  of  the  right  of  dis- 
covery in  equity  when  seeking  equita- 
ble relief.  Such  remedy  is  not  as 
cfTectual  as  the  equitable  remody." 

(a)  Cited  with  approval  in  Chnp- 
mnn  v.  Lee,  45  Ohio  St.  350,  13  N.  E . 
736. 


253  THE    AUXILIAEY    JURISDICTION.  §    195 

tion,  is  now  confined  to  a  portion  only  of  tlie  states  and 
territories;  and  even  in  those  commonwealths  a  resort  to 
it  is  quite  infrequent.  For  this  reason,  an  extensive  and 
minute  discussion  of  the  rules  which  govern  it  seems  to 
be  unnecessary.  On  the  other  hand,  the  principles  and  doc- 
trines relating  to  discovery,  which  have  been  settled  by 
courts  of  equity,  and  which  determine  what  facts  parties 
can  be  compelled  to  disclose,  and  what  documents  to  pro- 
duce, and  under  what  circumstances  the  disclosure  or  pro- 
duction can  be  obtained,  will  still  continue  to  be  recognized 
by  the  courts,  and  to  regulate  their  action  in  enforcing  the 
examination  of  parties  and  the  production  of  writings  by 
means  of  the  more  summary  statutory  proceedings.^ "  The 
abolition  or  discontinuance  of  the  technical  **  discovery  " 
has  not  abrogated  these  principles  and  doctrines,  nor  dis- 
pensed with  their  statement,  at  least  in  a  brief  and  con- 
densed form. 

§  195.  General  Doctrines  when  Discovery  will  be  Enforced." 
—  As  this  auxiliary  jurisdiction  was  contrived  to  supply  a 
great  defect  in  the  ancient  common-law  methods,  which  was 
a  constant  source  of  wrong  to  suitors  at  law,  and  as  it  was 
intended  to  promote  right  and  justice,  discovery  was,  from 
the  outset,  favored  by  courts  of  equity;  and  as  a  general 
doctrine,  it  will  always  be  enforced,  unless  some  recognized 
and  well-established  objection  exists  in  the  particular  case 
to  prevent  or  to  limit  its  operation.  This  affirmative  propo- 
sition is  so  generally  true  that  the  discussion  of  the  subject 
mainly  consists  in  stating  and  explaining  the  objections 
which  have  been  established,  and  which  alone  can  avail  to 
hinder  the  exercise  of  the  jurisdiction.^    While  thus  made 

§  194,  lAs  illustrations,  see  the  following  cases:  Anderson  v.  Bk.  of  Br. 
Columbia,  L.  R.  2  C'a.  Div,  644;  Cashin  v.  Craddock,  L.  R.  2  Ch.  Div.  140; 
Hoffman  v,  Postill,  L.  R.  4  Ch.  673. 

§  195,  1  Jeremy's  Eq.  Jur.  257-269.    In  Wigram  on  Discovery,  21,  22,  the  gen- 

(b)  Cited  to  this  effect  in  Arnold  v.  (a)  Cited    with    approval    in    Rey- 

Pawtuxet  Val.  Water  Co.,  18  R.  I.  nolds  v.  Burgess  Sulphite  Fibre  Co., 
189,  26  Atl.  55,  19  L.  R.  A.  602.  71  N.  H.  332,  51  Atl.  1075,  57  L.  R.  A. 

949,  93  Am.  St.  Rep.  535. 


§    195  EQUITY   JUBISPBUDBNCE.  254 

effective,  the  jurisdiction  is  also  carefully  guarded,  so  as 
not  to  infringe  upon  the  defendant's  rights.  Its  object  is 
to  promote  justice  by  eliciting  facts  material  to  the  plain- 
tiff's contention;  not  to  compel  the  defendant  to  disclose 
matters  injurious  to  himself  or  prejudicial  to  his  own  case. 
While  the  plaintiff  is  sufSciently  aided  in  establishing  his 
own  side  of  the  controversy,  the  defendant  is  also  carefully 
guarded.  In  stating  the  matters  which  are  aflSrmatively 
requisite  to  the  maintenance  of  a  suit  for  discovery,  and 
the  objections  which  may  negatively  operate  to  defeat  it,  I 
shall  divide  the  discussion  into  the  following  principal 
heads :  1.  What  judicial  proceeding,  in  what  courts,  will  be 
aided  by  "discovery"  in  equity;  2.  The  parties,  their  situ- 
ation and  relations  with  each  other,  in  order  that  a  discov- 
ery may  be  enforced;  3.  The  nature,  subject-matter,  and 

eral  principles  are  summed  up  in  the  following  propositions:  "  1.  It  is  the  right, 
as  a  general  rule,  of  the  plaintiff  in  equity  to  examine  the  defendant  upon 
oath  as  to  all  matters  of  fact  which,  being  well  pleaded  in  the  bill,  are  mate- 
rial to  the  proof  of  the  plaintiff's  case,  and  which  the  defendant  does  not,  by 
his  form  of  pleading,  admit.  2.  Courts  of  equity,  as  a  general  rule,  oblige  a 
defendant  to  pledge  his  oath  to  the  truth  of  his  defense;  with  this  qualifica- 
tion, the  right  of  a  plaintiff  in  equity  to  the  benefit  of  the  defendant's  oath 
is  limited  to  a  discovery  of  such  material  facts  as  relate  to  the  plaintiff's 
case;  and  it  does  not  extend  to  the  discovery  of  the  manner  in  which,  or  of  the 
evidence  by  means  of  which,  the  defendant's  case  is  to  be  established,  or  to 
any  discovery  of  the  defendant's  evidence."  In  Cooper's  Eq.  PL,  chap.  3,  §  .3, 
p.  189,  the  objections  which  will  prevent  a  discovery  are  thus  summarized: 
"  1.  That  the  subject  is  not  cognizable  in  any  municipal  court  of  justice; 
2.  That  the  court  will  not  lend  its  aid  to  obtain  a  discovery  for  the  particu- 
lar court  for  which  it  is  wanted;  3.  That  the  plaintiff  is  not  entitled  to  a 
discovery,  by  reason  of  some  personal  disability;  4.  That  the  plaintiff  has 
no  title  to  the  character  in  which  he  sues;  5.  That  the  value  of  the  suit  is 
beneath  the  dignity  of  the  court;  6.  That  the  plaintiff  has  no  interest  in  the 
subject-matter,  or  title  to  tlie  discovery  required,  or  that  an  action  will  not 
lie  for  which  it  is  wanted;  7.  Tliat  the  defendant  is  not  answerable  to  the 
plaintiff,  but  that  some  otlier  person  has  a  right  to  call  for  the  discovery; 

8.  That  the   policy   of  the   law   exempts  the   defendant    from   the   discovery; 

9.  That  the  defendant  is  not  bound  to  discover  his  own  title;  10.  That  the 
discovery  is  not  material  in  the  suit;  11.  That  the  defendant  is  a  mere  wit- 
ness; 12.  Tliat  the  discovery  called  for  would  criminate  the  defendant."  It 
should  be  observed  that  both  these  extracts  relate  to  discovery  as  an  incident 
of  ordinary  suits  for  relief,  as  well  as  to  discovery  proper;  indeed,  some 
passages  in  eacli  can  only  apply  to  the  former  mode  of  compelling  the  de- 
feudant  to  disclose  facts. 


255  THE    AUXILIARY    JURISDICTION.  §    196 

object  of  the  discovery  itself, —  that  is,  the  matters  and 
facts  of  which  the  plaintiff  in  the  equity  suit  may  inquire 
and  compel  a  discovery,  and  the  defendant  must  answer  and 
make  discovery;  4.  The  defendant's  answer  in  the  discovery 
suit,  when,  how  far,  and  by  whom  it  may  be  used  as  evidence. 
§  196.  I.  What  Judicial  Proceedings,  in  What  Courts,  will  be 
Aided  by  Discovery  in  Equity. —  A  suit  for  discovery  will  be 
maintained  in  aid  of  another  cause  depending  in  a  court  of 
equity  upon  a  cross-bill  filed  for  that  purpose  by  the  de- 
fendant therein;^  and  especially  in  aid  of  proceedings  in 
any  common-law  court  of  general  jurisdiction  or  other  pub- 
lic tribunal  of  the  same  country  which  is  or  was  by  its  orig- 
inal modes  of  procedure  unable  to  compel  the  needed  dis- 
closure.^ It  has  been  said  that  the  jurisdiction  in  aid  of 
courts  of  law  is  confined  to  the  superior  courts,  and  does 
not  extend  to  inferior  courts  whose  jurisdiction  is  local  or 
is  limited  as  to  the  subject-matter.^    It  is  well  settled  that 

1  Millsaps  V.  Pfeiffer,  44  Miss.  805 ;  King  of  Spain  v.  Hullett,  1  Clark  &  F. 
333;  Prioleau  v.  United  States,  L.  R.  2  Eq.  659;  United  States  v.  Wagner, 
L.  R.  2  Ch.  582,  L.  R.  3  Eq.  724;  Colombian  Government  v.  Rothschild,  1 
Sim.  94.  But  see  Heath  v.  Erie  R.  R.,  9  Blatch.  316,  as  to  effect  of  recent 
statutes.  It  seems,  also,  that  a  bill  for  discovery  may  sometimes  lie  in  behalf 
of  the  complaining  party  in  another  proceeding  pending  in  a  court  of  equity: 
Montague  v.  Dudman,  2  Ves.  Sr.  398,  per  Lord  Hardwicke. 

2  Jeremy's  Eq.  Jur.  268;  March  v.  Davidson,  9  Paige,  580;  Lane  v.  Steb- 
bins,  9  Paige,  622;  Atlantic  Ins.  Co.  v.  Lunar,  1  Sand.  Ch.  91;  Kearney  v. 
Jeffries,  48  Miss.  343;  Buckner  v.  Ferguson,  44  Miss.  677;  Shotwell  v.  Smith, 
20  N.  J.  Eq.  79. 

3  See  Jeremy's  Eq.  Jur.  268,  where  the  proposition  is  laid  down  in  this 
broad  manner  excepting  all  inferior  courts,  and  defining  them  as  those  whose 
jurisdiction  is  local,  although  otherwise  general,  and  those  whose  jurisdiction 
is  limited  in  any  manner,  giving  as  an  illustration  the  ecclesiastical  courts. 
The  proposition  in  this  broad  form  may  well  be  doubted.  Adams,  in  his 
treatise,  states  the  limitation  in  a  much  different  manner.  He  says  that  dis- 
covery may  be  enforced  in  aid  of  relief  "  asked  from  the  court  of  chancery,  or 
from  another  public  tribunal,  in  this  country,  which  is  itself  unable  to  enforce 
discovery;  but  will  not  be  enforced  to  aid  a  proceeding  before  arbitrators,  or 
before  an  inferior  court."  He  adds  that  the  reason  why  it  is  refused  in  aid 
of  proceedings  in  the  ecclesiastical  courts  is  because  those  courts  have  them- 
selves ample  power  to  compel  a  disclosure  of  facts.  I  think  it  clear  that  the 
"  inferior  courts  "  mentioned  by  Mr.  Adams  do  not  entirely  correspond  with 
the  description  given  in  Jeremy.  It  is  very  certain  that  a  discovery  will 
not  be  granted  in  aid  of  suits  pending  in  courts  of  justices  of  the  peace,  and 


§    196  EQUITY   JURISPRUDENCE.  256 

a  discovery  will  not  be  granted  in  aid  of  a  controversy  be- 
fore arbitrators,  where  the  submission  to  arbitration  was 
the  voluntary  act  of  the  parties;^  but  the  reason  of  this 
rule  fails,  and  a  discovery  will  be  compelled  in  aid  of  a 
compulsory  reference  to  arbitrators  or  referees  ordered  by 
the  court  in  an  action.^  Discovery  has  sometimes  been 
granted,  both  in  England  and  in  this  country,  in  aid  of  a 
controversy  pending  in  a  tribunal  of  a  foreign  country .*  * 

such  triDiinals  which  are  in  every  way  inferior.  But  in  most  of  the  states 
the  courts  of  general  original  jurisdiction  as  to  persons  and  subject-matter  are 
limited  as  to  locality,  and  to  deny  the  "  discovery  "  in  aid  of  proceedings  in 
these  courts  because  they  are  "  inferior  "  would  virtually  be  to  abolish  dis- 
covery. 

4  Jeremy's  Eq.  Jur.  2GS;  Street  v.  Rigby,  6  Ves.  821.  The  reason  is,  that 
such  arbitrators  are  not  a  regular  tribunal,  but  judges  chosen  by  the  parties 
outside  of  the  ordinary  course  and  mode  of  administering  justice. 

5  British  Empire  Ship  Co.  v.  Somes,  3  Kay  &  J.  433. 

6  Mitchell  v.  Smith,  1  Paige,  287;  Daubigny  v.  Davallon,  2  Anstr.  467, 
4G8;  Earl  of  Derby  v.  Duke  of  Athol,  1  Ves.  Sr.  202,  205;  Bent  v.  Young, 
9  Sim.  185;  that  a  suit  for  discovery  may  be  maintained  in  aid  of  a  foreign 
court  has  certainly  not  become  a  universal  rule.  Mr.  Adams  strongly  doubts 
its  propriety:  Adams's  Eq.,  marg.  p.  19.  The  recent  decision  in  Reiner  v. 
Marquis  of  Salisbury,  L.  R.  2  Ch.  Div.  378,  supports  this  doubt. 

(a)    Piscovery   in   Aid   of   Foreign  an  erroneous  construction  of  the  case 

Suit. —  In    tlie    case    of    Dreyfus    v.  of  Crowe  v.  Del  Rio.     In  his  opinion, 

Peruvian   Guano    Co.,    L.    R.    41    Ch.  Mr.  Justice  Kay  expressly  refers  to 

Div.   151,  the  question  whether  juris-  the  case  of  Mitchell  v.  Smith,  1  Paige, 

diction  existed  to  entertain  a  bill  for  287,  and  to  the  various  text-writers, 

discovery   only   in    aid    of   an    action  who  state  that  the  jurisdiction  exists, 

pending    in    a    foreign    tribunal    was  and  shows  conclusively  that  these  au- 

directly  passed  upon,  and   the   juris-  thorities  based  their  opinions  on  Lord 

diction  was  expressly  denied.     In  ex-  Redesdale's  dictum,  for  in  citing  the 

amining     the     question,    Mr.    Justice  case  of  Crowe  v.  Del  Rio  they  have 

Kay,  in  his  opinion,  showed  that  the  each    copied    his    misspelling    of    the 

notion  that  such  jurisdiction  existed  names  of  the  defendants.     The  juris- 

was  directly  traceable  to  a  dictum  of  diction  was  upheld  in  Post  v.  Toledo, 

Lord  Redcsdale  contained  in  his  own  C.  &  St.  L.  R.  Co.,  144  Mass.  341,  11 

work  on  pleadings   (Mitford's  Eq.  PI.  N.  E.  540,  59  Am.  Rep.  86.    The  court 

3d   ed.    151,   5th   ed.,    p.   221),   which  said:     "  The  jurisdiction  which  courts 

purported  to  be  based  on  the  authority  of  equity  exercise  as  ancillary  to  that 

of  the  case  of  Crowe  v.  Del  Rio,  er-  of  other  courts  is  not,  on  either  prin- 

roneously  called  Crowe  v.  Del  Ris,  de-  ciple  or  authority,  confined  to  other 

cided  in  1709,  and  referred  to  in  the  courts  of  the  same  state.     A  receiver 

BubsequcDt  case  of  Bent  v.  Young,  9  has  I)ocn  appointed  to  collect  or  pre- 

Sim.   18ii    and   that  such  dictum  was  servo    j)roperty    pending   litigation    in 

without  support,  and  was  founded  on  a    foreign    court,    and    an    injunction 


257  THE    AUXTTiTARY    JUEISDICTION.  §    197 

§  197.  The  cause  of  action  or  the  defense  which  can  be 
aided  by  a  suit  for  discovery  must  furthermore  be  wholly 
oivil  in  its  nature.  The  auxiliary  jurisdiction  of  discovery 
will  only  be  exercised  on  behalf  of  a  contention,  action,  or 
defense  entirely  civil ;  and  it  will  therefore  withhold  its  aid 
from  criminal  prosecutions,  actions  penal  in  their  nature, 
and  controversies  involving  moral  turpitude,  or  arising 
from  acts  clearly  immoral,  even  though  brought  for  the 
purpose  of  recovering  pecuniary  compensation.^  *    It  was 

1  Black  V.  Black,  26  N.  J.  Eq.  431  (no  discovery  granted  as  to  commis- 
sion of  adultery)  ;  Currier  v.  Concord  R.  R.,  48  N.  H.  321;  Glynn  v.  Houston, 
1  Keen,  329;  Earl  of  Suffolk  v.  Green,  1  Atk.  450;  East  India  Co.  v.  Camp- 
bell, 1  Yes.  Sr,  246;  King  v.  Burr,  3  Mer.  693;  Claridge  v.  Hoare,  14  Yea. 
59,  65;  Montague  v.  Dudman,  2  Yes.  Sr.  398;  Litchfield  v.  Bond,  6  Beav.  88; 
Short  V.  Mercier,  3  Macn.  &  G.  205;  United  States  v.  McRae,  L.  R.  3  Ch. 
79;  United  States  v.  McRae,  L.  R.  4  Eq.  327;  United  States  v.  Saline  Bank, 
1  Pet.  100,  104;  Ocean  Ins.  Co.  v.  Fields,  2  Story,  59;  Stewart  v.  Draslia, 
4  McLean,  563;  Union  Bank  v.  Barker,  3  Barb.  Ch.  358;  Skinner  v.  Judson, 
8  Conn.  528,  21  Am.  Dec.  691;  Northrup  v.  Hatch,  6  Conn.  361;  Poindexter 
V.  Davis,  6  Gratt.  481;  as  to  discovery  in  aid  of  suits  for  slander  and  libel, 
see  Bailey  v.  Dean,  5  Barb.  297;  Thorpe  v.  Macauley,  5  Madd.  229,  230; 
Shackell  v.  Macauley,  2  Sim.  &  St.  79,  2  Russ.  550,  note,  1  Bligh,  N,  S.,  96, 

133,   134;   Wilmot  v.  Maccabe,  4  Sim.  263;   Southall  v.  ,  1  Younge, 

308;  Hare  on  Discovery,  116,  117. 

has  been  granted  against  transferring  (a)  Cited     and     similar     language 

property  until  the  title  could  be  de-  used  in  Reynolds  v.  Burgess  Sulphite 

termined  in  a  foreign  court.     In  the  Fibre  Co.,  71  N.  H.  332,  341-345,  51 

present    case    the    fact    that    all    the  Atl.   1075,  57   L,  R.  A.   949,   93  Am. 

officers  and  all  the  books  of  the  cor-  St.  Rep.  535,  544-549.     In  this  case 

poration    are    without    the    state    of  it  is  held  that  a  discovery  may  be  had 

Ohio  makes  it,  as  the  bill  alleges,  im-  in  aid  of  an  action  at  law  for  a  per- 

possible    for    the    plaintiff    to    obtain  sonal  tort.  The  court  held  that  the  ac- 

discovery  in  the  Ohio  courts,  and,  as  tion,  being  for  negligence  merely,  did 

we  think  the  plaintiff  is  entitled  to  not  involve  moral  turpitude.    The  case 

discovery  from  the  officers  of  the  cor-  contains  an  excellent  discussion  of  the 

poration,   we   are   of   opinion   that   a  right  to  discovery  in  such  a  case  and 

bill  for  discovery  may  be  maintained  cites  many  of  the  authorities.     That 

here,  where  the  officers  and  books  of  discovery  lies  in  aid  of  actions  of  tort 

the  corporation  are."     In  Yan  Dyke  relating  to  property  is  unquestioned, 

V.  Van  Dyke  (N.  J.),  49  Atl.  1116,  it  citing    East    India    Co.    v.    Evans,    1 

was  held  that  where   a  discovery  of  Vern.    307 ;    Marsden   v.    Panshall,    1 

facts  was  necessary  before  complain-  Yern.    407 ;    Heathcote     v.    Fleete,    2 

ant   could   accept   any   settlement  by  Yern.    442 ;    Morse    v.    Buckworth,    2 

administrators  in  the  orphans'  court  Yern.  443 ;   Sloane  v.  Hatfield,  Bunb. 

of  another  state,  the  court  might  al-  18 ;    Taylor  v.   Crompton,   Bunb.   95 ; 

low  discovery.  Macclesfield  v.  Davis,  3  Yes.  &  B.  16  > 

Vol.  I  — 17 


§    197  EQUITY   JURISPRUDENCE.  258 

also  a  well-settled  rule  prior  to  the  modern  legislation,  that 
equity  would  not  interfere  in  aid  of  proceedings,  otherwise 
suitable  to  be  aided,  in  other  courts  which,  by  their  constitu- 
tion or  established  modes  of  procedure,  were  themselves 
able  to  give  their  suitors  the  needed  relief  by  compelling  the 
disclosure  of  facts  or  the  production  of  documents.^    As  to 

2  Jeremy's  Eq.  Jur.  269;  Dunn  v.  Coates,  1  Atk.  288;  Anonymous,  2  Ves. 
451;  Gelston  v.  Hoyt,  1  Johns.  Ch.  547.  In  Leggett  v.  Postley,  2  Paige,  599, 
it  was  held  that  a  discovery  would  not  be  granted  merely  to  guard  against 
anticipated  perjury  on  the  trial  of  a  suit  at  law.  In  Gelston  v.  Hoyt,  1 
Johns.  Ch.  547,  Chancellor  Kent  lays  down  the  doctrine  in  a  very  sweeping 
manner,  but  his  statement  of  the  rule  is  too  broad,  and  must  not  be  accepted 
without  much  limitation,  as  has  been  shown  by  subsequent  authorities.  He 
says:  "  If  a  bill  seeks  discovery  in  aid  of  the  jurisdiction  of  a  court  of  law, 
it  ought  to  appear  that  such  aid  is  required.  If  a  court  of  law  can  compel 
the  discovery,  a  court  of  equity  will  not  interfere.  And  the  facts  which  de- 
pend upon  the  testimony  of  witnesses  can  be  procured  or  proved  at  law, 
because  courts  of  law  can  compel  the  attendance  of  witnesses.  It  is  not  denied 
in  this  case  but  that  every  fact  material  to  the  defense  at  law  can  be  proved 
by  ordinary  means  at  law,  without  resorting  to  the  aid  of  this  court.  .  .  . 
Unless,  therefore,  the  bill  states  affirmatively  that  the  discovery  is  really 
wanted  for  the  defense  at  law,  and  also  shows  that  the  discovery  might  be 
material  to  that  defense,  it  does  not  appear  to  be  reasonable  and  just  that  the 
suit  at  law  should  be  delayed."  The  same  rule  was  stated  in  Seymour  v. 
Seymour,  4  Johns.  Ch.  411,  and  Leggett  v.  Postley,  2  Paige,  599,  601.  But 
the  rule  as  thus  stated  is  confined  to  suits  for  discovery  and  relief,  and  does 
not  apply  to  suits  for  discovery  proper,  i.  e.,  the  pure  exercise  of  the  auxiliary 
jurisdiction.  When  an  action  is  pending  at  law,  and  one  of  the  parties  seelca 
to  withdraw  the  entire  controversy  from  that  tribunal  into  a  court  of  equity, 
on  the  ground  that  a  discovery  is  needed,  and  files  a  bill  in  equity  praying 
for  a  discovery  and  for  final  relief,  and  an  injunction  upon  the  action  at 
law,  he  must  affirmatively  allege  in  his  bill  that  a  discovery  is  necessary,  and 
that  the  facts  which  he  seeks  to  obtain,  and  which  are  material  to  his  con- 
tention, cannot  be  proved  by  witnesses  or  by  the  ordinary  testimony  in  the 
court  of  law.  There  is  no  such  requisite  to  the  maintaining  a  suit  for  dis- 
covery proper  without  relief.  The  plaintiff  in  the  suit  must,  of  course,  show 
that  the  matters  which  he  seeks  to  obtain  are  material  to  his  contention,  but 
not  that  the  suit  for  a  discovery  is  the  only  means  of  obtaining  them.     In 

Burrell  v.  Nicholson,  3  Barn.  &  Adol.  585,  586;  but  contra,  that  discovery 
649,  1  Mylne  &  K.  680.  That  dis-  cannot  be  sustained  in  aid  of  an  action 
covery  may  be  had  in  aid  of  the  de-  for  a  mere  personal  tort,  dicta  in 
fense  to  a  suit  for  libel,  citing  Macau-  Glynn  v.  Houston,  1  Keen,  329;  Pye 
ley  V.  Shackcli,  1  Bligh,  N.  S.,  96;  v.  Butterfiold,  5  Best  &  S.  829,  836; 
Wilmot  V.  Maccabe,  4  Sim.  203;  and  Lyell  v.  Kennedy,  8  App.  Cas. 
Thorpe  v.  Macaulcy,  5  Mad.  218;  217,  233;  and  tlie  decision  in  Robin- 
Marsh  V.  Davison,  9  Paige  680,  584,  eon  v.  Craig,  10  Ala.  50. 


259  THE   AUXILIARY    JURISDICTION.  §    197 

the  effect  of  the  recent  statutes  conferring  powers  upon- 
the  law  courts,  and  even  upon  courts  of  equity,  which  they 
did  not  originally  possess,  and  thus  obviating  the  necessity 
of  a  special  resort  to  equity,  there  is,  as  has  already  been 
shown,  a  direct  antagonism  among  the  decided  cases ;  some 
holding  that  the  auxiliary  equitable  jurisdiction  remains 
unaffected,  others  declaring  it  abridged  or  abrogated.^'* 
The  action  in  aid  of  whicli  the  discovery  is  sought  may  be 
pending;  but  this  is  not  necessary.  It  is  sufficient  if  the 
plaintiff  in  the  bill  for  a  discovery  shows  that  he  has  a 
right  to  maintain  or  defend  an  action  in  another  court,  and 
that  he  is  about  to  sue  or  is  liable  to  be  sued  therein,  al- 

other  words,  a  suit  for  a  discovery  is  proper,  not  only  when  the  plaintiff 
therein  is  without  other  means  of  proof,  but  also  in  aid  of  his  other  evidence, 
or  even  to  dispense  with  the  necessity  of  other  evidence.  All  the  text-writerS' 
are  agreed  upon  this  view  of  the  object  and  use  of  "discovery"  proper: 
Hare  on  Discovery,  1,  110;  Wigram  on  Discovery,  4,  5,  25;  Story's  Eq.  PI., 
§  319,  note  3.  In  Mitford's  Eq.  PI.  (Jeremy's  ed.)  307,  it  is  said:  "The 
plaintiff  may  require  this  discovery,  either  because  he  cannot  prove  the 
facts,  or  in  aid  of  proof,  or  to  avoid  expense."  In  Earl  of  Glengall  v. 
Frazer,  2  Hare,  99,  105,  Wigram,  V.  C,  said:  "The  plaintiff  is  entitled 
to  a  discovery,  not  only  in  respect  to  facts  which  he  cannot  otherwise 
prove,  but  also  as  to  facts  the  admission  of  which  will  relieve  him 
from  the  necessity  of  adducing  proof  from  other  sources."  The  decisions 
are  to  the  same  effect:  Montague  v.  Dudman,  2  Ves.  Sr.  398;  Brereton  Vc 
Gamul,  2  Atk.  241;  Peck  v.  Ashley,  12  Met.  481;  Stacy  v.  Pearson,  3  Rich. 
Eq.  152;  Chambers  v.  Warren,  13  111.  321;  Williams  v.  Wann,  8  Blackf.  478. 
In  March  v.  Davison,  9  Paige,  580,  the  rule  laid  do^vn  in  Leggett  v.  Postley, 
2  Paige,  599,  and  Gelston  v.  Hoyt,  1  Jolms.  Ch.  547,  so  far  as  it  applied  to 
suits  for  a  discovery  alone,  was  expressly  overruled.  See  also  French  v.  First 
Nat.  Bank,  7  Ben.  488 ;  Shotwell  v.  Smith,  20  N.  J.  Eq.  79. 

3  It  has  been  held  that  the  statutes  permitting  parties  to  be  examined  as 
witnesses,  and  providing  summary  modes  for  compelling  the  production  of 
documents,  have  not  affected  the  auxiliary  equitable  jurisdiction  for  dis- 
covery: Lovell  V.  Galloway,  17  Beav.  1;  British  Emp.  Ship  Co.  v.  Somes,  3 
Kay  &  J.  433 ;  Cannon  v.  McNab,  48  Ala.  99 ;  Shotwell  v.  Smith,  20  N.  J.  Eq. 
79.  But,  per  contra,  such  statutes  have  abolished  the  jurisdiction:  Riopelle 
V.  Doellner,  26  Mich.  102;  Heath  v.  Erie  R.  R.,  9  Blatch.  316;  also  a  statute 
allowing  the  defendant  in  a  suit  in  equity  to  examine  the  plaintiff  therein, 
upon  interrogatories  does  not  affect  the  jurisdiction  to  entertain  a  cross-bill 
by  defendant  for  purpose  of  a  discovery:  Millsaps  v.  Pfeiffer,  44  Miss.  805 j 
but,  per  contra,  see  Heath  v.  Erie  R.  R.,  9  Blatchf.  316. 

(b)  Cited  with  approval  to  effect  ley  v.  Hiffin,  84  Ala.  600,  4  South, 
that  jurisdiction  is  not  lost.     Hand-       725. 


§  197 


EQUITY    JURISPRUDENCE. 


260 


tliough  no  action  is  yet  commenced;  a  discovery  may  be 
needed  to  determine  the  proper  parties,  or  to  properly 
frame  the  allegations  of  his  pleading.*  **    But  after  a  judg- 

4  Kearney  v.  Jeffries,  48  Miss.  343 ;  Buckner  v.  Ferguson,  44  Miss.  677 ; 
'Hoppock  V.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  2SG;  Baxter  v.  Farmer,  7  Ired. 
Eq.  239;  Turner  v.  Dickerson,  9  N.  J.  Eq.  140;  Moodalay  v.  Morton,  1  Brown 
€h.  4G9,  2  Dick.  652;  Angell  v.  Angell,  1  Sim.  &  St.  83;  City  of  London  v. 
Levy,  8  Ves.  404. 


(c)  Discovery  in  Aid  of  Future 
Action. — The  text  is  cited  to  the  effect 
that  a  discovery  may  be  needed  to 
•determine  the  proper  parties  in  Hur- 
Ticane  Tel.  Co  v.  Mohler,  51  W.  Va. 
1,  41  S.  E.  421.  So  "when  a  plain- 
tiff has  a  cause  of  action  against  per- 
sons who  are  defined  either  by  stat- 
ute, or  by  their  relations  to  property 
or  a  business  by  the  management  of 
■which  the  plaintiff  has  suffered  in- 
jury, and  the  names  and  residences  of 
these  persons  are  unknown  to  him,  it 
is  not  clear  that  there  may  not  be 
such  a  state  of  facts  that  a  court 
ought  to  compel  a  discovery  of  the 
names  and  residences  of  these  persons 
from  their  agents  in  charge  of  the 
property  or  business;  and  the  de- 
cisions recognize  that  this  may  some- 
times be  done."  Post  v.  Toledo,  C.  & 
St.  L.  R.  Co.,  144  Mass.  341,  11  N.  E. 
540,  59  Am.  Rep.  86.  In  this  case  a 
discovery  of  the  names  and  addresses 
of  the  stockholders  of  a  corporation 
-was  allowed.  So  held,  also,  in  Clark 
T.  Rhode  Island  Locomotive  Works, 
24  R.  I.  307,  53  Atl.  47.  But  see 
Brown  v.  M'Donald,  130  Fed.  964, 
where  the  complainant  was  held  to 
have  an  adequate  remedy  at  law  by 
calling  defendants  as  witnesses  in  the 
legal  action. 

However,  a  bill  of  discovery  can- 
not be  used  for  mere  "  fishing  "  pur- 
poses. Thus,  in  George  v.  Solomon, 
71  Miss.  163,  14  South.  531,  plaintiff 
ailogfd  that  he  paid  ront  to  two  dif- 
ferent persons  wliom  he  made  defend- 


ants and  asked  a  discovery  in  order 
that  it  appear  which  should  refund. 
Discovery  was  refused,  the  court  say- 
ing: "The  bill  is  a  pure  and  simple 
fishing  bill,  and  complainant  angles 
in  the  broadest  water.  If  relief, 
under  these  circumstances,  can  be 
afforded  in  equity,  we  see  no  rea- 
son why  the  o\\-ner  of  lost  or  stolen 
property  might  not  implead  in  one 
suit  the  residents  of  a  city  or  county 
upon  the  averment  that  some  one  of 
them  —  which  one,  the  complainant  is 
not  informed  —  has  converted  his 
property  and  is  liable  for  its  value." 
See  also  First  Nat.  Bank  v.  Phillips, 
71  Miss.  51,  15  South.  29. 

As  holding  in  accordance  with  the 
text,  that  a  discovery  may  be  had  as 
auxiliary  to  the  maintenance  of  a 
suit  not  yet  brought,  see  Parrott  v. 
Chestertown  Nat.  Bank,  88  Md.  515, 
41  Atl.  1067;  Wolf  v.  Wolf's  Ex'r,  2 
Har.  &  G.  382,  18  Am.  Dec.  313; 
Heinz  v.  German  Fire  Ins.  Co.,  95 
Md.  760,  51  Atl.  951;  Post  v.  Toledo, 
C.  &  St.  L.  R.  Co.,  144  Mass.  341,  11 
N.  E.  540,  59  Am.  Rep.  86 ;  Reynolds 
v.  Burgess  Sulphite  Fibre  Co.,  71 
N.  H.  332,  341,  51  Atl.  1075,  93  Am. 
St.  Rep.  535,  544,  57  L.  R.  A.  949 
(citing  the  text,  and  Marsden  v.  Pans- 
hall,  1  Vern.  437 ;  Bovill  v.  Moore,  2 
Coop.  Ch.  Cas.  56;  Heathcote  v. 
Flecte,  2  Vern.  442;  Morse  v.  Buck- 
worth,  2  Vern.  443 ;  Russell  v.  Cow- 
ley, 1  Wcbst.  Pat.  Cas.  457;  Patent 
Type  Founding  Co.  v.  Walter,  Johns. 
727). 


261  THE    AUXILIAEY    JURISDICTION.  §    198 

ment  or  verdict  in  the  action  at  law,  it  is  too  late  to  bring 
a  suit  for  discovery  alone.^ 

§  198.  II.  The  Parties,  their  Situation  and  Relations  to  Each 
Other,  in  Order  that  a  Discovery  may  be  Granted  —  The 
Plaintiff. —  Either  the  plaintiff  or  the  defendant  in  the 
pending  or  anticipated  action  at  law  may  file  a  bill  for  a 
discovery.  Since  by  the  rules  of  equity  pleading,  independ- 
ent of  modern  statutes,  only  the  complainant  can  compel 
a  disclosure  on  oath  from  his  adversary,  if  the  defendant 
in  an  equity  suit  needs  a  discovery  he  must  file  a  cross-bill, 
and  thus  become  a  plaintiff  for  that  purpose.^  As  the  first 
requisite,  the  plaintiff  in  the  equity  suit  for  a  discovery 
must  show  that  he  has  a  title  or  interest  in  the  subject- 
matter  to  which  the  proposed  discovery  relates,  such  an 
interest  as  he  can  maintain  or  defend  in  a  proceeding 
pending  or  to  be  brought  in  another  tribunal,  and  must  thus 
show  that  he  is  entitled  to  the  discovery.  A  mere  stranger 
is  never  allowed  to  maintain  a  suit  for  discovery  concern- 

5  Green  v.  Massie,  21  Gratt.  356;  McCollum  v.  Prewitt,  37  Ala.  573; 
Duncan  v.  Lyon,  3  Johns.  Ch.  355,  402,  8  Am.  Dec.  513;  Cowman  v.  Kings- 
land,  4  Edw.  Ch.  627;  Foltz  v.  Pourie,  2  Desaus.  Eq.  40;  Faulkner's  Adm'r  v^ 
Harwood,  6  Rand.  125.  If  equity  has  concurrent  jurisdiction,  a  bill  may  bse^ 
filed  for  relief  and  discovery  as  an  incident  thereto,  and  to  enjoin  the  action 
at  law  even  after  judgment. 

1  Millsap  V.  Pfeiffer,  44  Miss.  805 ;  Bogert  v.  Bogert,  2  Edw.  Ch.  399.  To 
aid  the  defendant  in  obtaining  a  discovery,  and  the  production  of  documents 
upon  his  crossbill,  the  court  may  stay  the  proceedings  of  the  plaintiff  on 
his  original  bill  until  he  has  fully  answered  the  cross-bill,  made  complete 
discovery,  or  produced  the  needed  documents:  Princess  of  Wales  v.  Lonl 
Liverpool,  1  Swanst.  114;  Taylor  v.  Hemingj  4  Beav.  235;  Bate  v.  Bate,  7 
Beav.  528;  Milligan  v.  Mitchell,  6  Sim.  186;  Penfold  v.  Nunn,  5  Sim.  405; 
United  States  v.  Wagner,  L.  R.  2  Ch.  582;  Talmage  v.  Pell,  9  Paige,  410; 
White  v.  Buloid,  2  Paige,  164. 

It  should  be  remembered,  in  applying  these  settled  rules,  that  by  the 
present  practice  in  England  and  in  many  of  our  states,  the  defendant  in  on 
equity  suit  no  longer  files  a  cross-bill,  and  the  defendant  (or  plaintiff)  in  a 
«»uit  at  law  no  longer  files  a  "bill  of  discovery  '';  in  either  case  the  defendant 
may  set  up  any  ground  for  affirmative  relief  in  a  "  counterclaim,"  and  may 
obtain  a  discovery  by  means  of  "  interrogatories "  submitted  in  the  action 
itself.  The  settled  doctrines  of  equity  apply  to  this  new  mode  of  procedure: 
Saunders  v.  Jones,  L.  R.  7  Ch.  Div.  435,  443,  per  Bacon,  V.  C. ;  Cashin  v. 
Craddock,  L.  R.  2  Ch.  Div.  140;  Anderson  v.  Bank  of  British  Columbia,  L.  R. 
2  Ch.  Div.  644;  Hoffman  v.  Postill,  L.  R.  4  Ch.  673. 


§    198  EQUITY   JURISPRUDENCE.  262 

ing  a  subject-matter  in  wliich  lie  has  no  interest  enforceable 
by  a  judicial  proceeding,  or  concerning  the  title  or  estate  of 
a  third  person.^  *  In  addition  to  exhibiting  a  title  or 
interest  in  the  subject-matter,  the  allegations  of  the  plain- 
tiff's bill  must  show  that  a  discovery  would  not  be  useless. 
The  plaintiff  in  the  discovery  suit  must  show  by  his  aver- 
ments, at  least  in  a  prima  facie  manner,  that  if  he  is  the 
plaintiff  in  the  action  at  law  he  has  a  good  cause  of  action, 
and  if  he  is  the  defendant,  he  has  a  good  defense  thereto. 
While  it  is  not  necessary  that  his  right  of  action  or  of  de- 
fense at  law  should  be  beyond  dispute,  still,  if  the  bill  should 
negative  the  existence  of  any  such  right,  the  court  of 
equity  would  of  course  refuse  a  discovery  which  would  then 
.be  useless.^''    If  the  result  of  the  controversy  at  law  is 

2  Jeremy's  Eq.  Jur.  258;  Baxter  v.  Farmer,  7  Ired.  Eq.  239;  Turner  v. 
Dicker  son,  9  N.  J.  Eq,  140;  Carter  v.  Jordan,  15  Ga.  76;  Jones  v.  Bradshaw, 

16  Gratt.  355;  Continental  Life  Ins.  Co.  v.  Webb,  54  Ala.  688;  Brown  v. 
Dudbridge,  2  Brown  Ch.  321,  322;  Brownsword  v.  Edwards,  2  Ves.  Sr.  243, 
-.247. 

On  tills  ground  the  heir  at  law  cannot,  during  the  life  of  his  ancestor, 
maintain  a  suit  for  discovery  concerning  the  estate,  since  he  has  no  present 
interest  in  it:  Buden  v.  Dore,  2  Ves.  445;  and  the  heir  at  law  cannot  com- 
pel a  production  of  deeds  relating  to  the  estate  in  possession  of  the  devisee, 
unless  he  is  an  heir  in  tail;  but  the  devisee  is  entitled  to  such  production 
irom  the  heir  at  law:  Shaftesbury  v.  Arrowsmith,  4  Ves.  71;  Cooper's  Eq. 
Fl..  chap.  1,  §  4,  pp.  58,  59;  chap.  3,  §  3,  pp.  197,  198.  As  a  general  rule, 
the  plaintifT  is  confined  to  facts  connected  with  or  relating  to  his  own 
title  or  estate,  and  cannot  investigate  the  title  or  estate  of  the  defendant 
in  the  discovery  suit.  This  rule,  however,  has  sometimes  been  relaxed 
when  necessary  for  the  ends  of  justice,  and  the  following  cases  are  examples 
both  of  the  rule  and  its  application:  Brown  v.  Wales,  L.  K.  15  Eq.  142; 
Cirdelstone  v.  North  British,  etc.,  Co.,  L.  R.  11  Eq.  197;  Com'rs,  etc.  v.  Glasse, 
L.  R.  15  Eq.  302;  Kettlewell  v.  Barstow,  L.  R.  7  Ch.  686;  Slack  v.  Black,  109 
Mass.  496;  Haskell  v.  Haskell,  3  Cush.  540;  Sackvill  v.  Ayleworth,  1  Vern. 
105 ;  Dursley  v.  Fitzhardinge,  6  Ves.  260 ;  Allan  v.  Allan,  15  Ves.  131 ;  Attorney- 
General  V.  Duplessis,  Parker,  144,  155-164;  5  Brown  Pari.  C.  91;  Glcgg  v. 
Legh,  4  Madd.  193,  208;  Wigram  on  Discovery,  21,  22;  Jeremy's  Eq.  Jur.  262, 
263. 

3  Jeremy's  Eq.  Jur.  261;  Cardale  v.  Watkins,  5  Madd.  18;  Wallis  v.  Duke 
of  Portland,  3  Ves.  494;    Lord  Kensington  v.  Mansell,   13  Ves.  240;   Angell 

(a)  See  also  Camp  v.  Ward,  69  Vt.  the  bill,  admitting  their  truth,  would 
286,  60  Am.  St.  Rep.  929,  37  Atl.  747.       enable  tlie  plaintiff  to  maintain  an  ac- 

(b)  "  UnlesH  the  facts  set  fortli  in       tion,   he   has    no   title   to   the   assist- 


263  THE    AUXILIARY   JURISDICTION.  §    199 

doubtful,  even  when  the  defendant  in  the  suit  for  a  dis- 
covery has  denied  the  plaintiff's  title,  or  has  set  up  matter 
which  if  true  would  operate  as  a  complete  defense,  the 
■court  of  equity  will,  in  general,  grant  the  discovery,  and 
leave  the  issue  to  be  tried  and  finally  determined  by  the 
court  of  law.* 

§  199.  The  Defendant. —  I  proceed  to  consider,  in  the  next 
place,  the  requisites  concerning  the  defendant  in  a  suit  for 
a  discovery.  No  discovery  can  be  compelled  from  an  in- 
competent defendant;  as,  for  example,  an  infant,  or  a 
lunatic  without  committee.^  The  general  rule  is  well  set- 
tled, and  admits  of  only  one  or  two  special  exceptions,  which 
are  necessary  to  prevent  a  failure  of  justice,  that  no  per- 
son can  properly  be  made  a  defendant  in  the  suit  for  a 
discovery,  or  compelled  as  such  to  disclose  facts  within  his 
knowledge,  unless  he  has  an  interest  in  the  subject-matter 

V,  Draper,  1  Vern.  399;  Macauley  v.  Shackell,  1  Bligh,  N.  S.,  120;  Thomas 
V.  Tyler,  3  Younge  &  C.  255;  Metier  v.  Metier,  19  N.  J.  Eq.  457;  Slack  v. 
Black,  109  Mass.  496. 

4  March  v.  Davison,  9  Paige,  580;  Lane  v.  Stebbins,  9  Paige,  622;  Deas 
V.  Harvie,  2  Barb.  Ch,  448;  Bailey  v.  Dean,  5  Barb.  297;  Peck  v.  Ashley, 
12  Met.  478;  Thomas  v,  Tyler,  3  Younge  &  C.  255,  261,  262;  Hare  on 
Discovery,  43-46.  A  suit  for  discovery  alone  may  thus  sometimes  be  main- 
tained where  a  bill  for  discovery  and  relief  would  be  overruled;  but  not 
after  a  judgment  or  verdict  in  an  action  at  law:  McCoUum  v.  Prewitt,  37 
Ala.  573;  Treadwell  v.  Brown,  44  N.  H.  551;  Primmer  v.  Patten,  32  111.  528; 
Chichester  v.  Marquis  of  Donegal,  L.  E.  4  Ch.  416;  Kettlewell  v.  Barstow, 
L.  11.  7  Ch.  686;  Thompson  v.  Dunn,  L.  R.  5  Ch.  573;  Smith  v.  Duke  of 
Beaufort,  1  Phill.  Ch.  209. 

1  Or  the  attorney-general,  when  sued  on  behalf  of  the  crown :  Mickle- 
thwaite  v.  Atkinson,  1  Coll.  C.  C.  173,  Adams's  Eq.  8.  The  joinder,  as  de- 
fendants in  the  same  suit  for  a  discovery,  of  defendants  in  separate  actions 
at  law  is  irregular:  Broadbent  v.  State,  7  Md.  416;  McDougald  v.  Maddox,  17 
Ga.  52. 

ance  of  a  court  of  equity  to  obtain  Life  Assur.  Co.,  08  Fed.  258   (account 

evidence   of   the   truth   of   the   case."  and  discovery)  ;  American  Ore  Mach. 

Hurricane  Tel.  Co.  v.  Mohler,  51  W.  Co.  v.  Atlas  Cement  Co.,  110  Fed.  53 

Va.  1,  41  S.  E.  421,  citing  this  section  (account   and   discovery)  ;    Welles   v. 

of   the   text.      Of   course,   where   dis-  Rhodes,    59    Conn.    498,    22    Atl.    286 

covery  is  merely  incidental  to  other  (bill  to  quiet  title)  ;  Courter  v.  Cres- 

pquitable    relief,    the    bill    cannot    be  cent  Sewing  Mach.  Co.,  60  N.  J.  Eq. 

maintained  when  a  right  to  relief  is  413,   45   Atl.   609    (account   and   dis- 

not  made  out.     Everson  v.  Equitable  covery). 


§    199  EQUITY   JURISPRUDENCE.  264 

of  the  controversy  in  aid  of  which  the  discovery  is  asked.^ 
Thus,  as  an  illustration  of  this  rule,  arbitrators  cannot,  in 
general,  be  joined  as  defendants  to  a  bill  of  discovery  and 
compelled  to  disclose  the  grounds  of  their  award,'  but  if 
they  are  charged  with  actual  misconduct,  fraud,  or  corrup- 
tion, they  are  obliged  to  answer  with  respect  to  such  allega- 
tions.* As  another  illustration  of  the  rule,  mere  witnesses 
cannot  be  joined  as  defendants  and  obliged  to  answer;  nor 
can  a  mere  agent  be  made  a  party  for  purpose  of  obtaining 
a  discovery  from  him.^  *  This  application  of  the  rule  is 
not  without  exception.  Where  an  agent,  as,  for  example^ 
an  attorney,  has  assisted  his  principal  in  the  accomplish- 
ment of  actual  fraud,  he  may  be  made  a  co-defendant  and 

2  Jeremy's  Eq.  Jur.  259;  Brownsword  v.  Edwards,  2  Ves.  Sr.  243;  Neu- 
man  v.  Godfrey,  2  Brown  Ch.  332;  Plummer  v.  May,  1  Ves.  Sr.  426; 
Dineley  v.  Dineley,  2  Atk.  394;  Finch  v.  Finch,  2  Ves.  Sr.  491;  Fenton 
V.  Hughes,  7  Ves.  287.  Thus  it  has  been  held  that  in  a  suit  by  his  cred- 
itors against  a  bankrupt  and  his  assignees,  he  cannot  be  compelled  to 
make  discovery  because  he  has  parted  with  his  interest:  De  Golls  v.  Ward, 
3  P.  Wms.  311,  note;  Griffin  v.  Archer,  2  Anstr.  478,  2  Ves.  G43;  Whitworth 
V.  Davis,  1  Ves.  &  B.  545.  The  exceptions  to  this  rule  belong  much  more 
frequently  to  suits  for  relief,  in  which  discovery  is  asked  as  an  incident,  than 
to  suits  for  a  discovery  proper  without  relief.  It  was  decided  in  In  re  Bar- 
ned's  Bank,  L.  R.  2  Ch.  350,  that  an  official  "  liquidator,"  in  winding  up 
corporations,  under  the  statute,  is  in  all  respects  in  the  same  position  as 
any  other  defendant,  and  is  not  deemed  an  officer  of  the  court;  i.  e.,  if  joined 
as  a  defendant  in  a  suit  against  the  corporation,  all  the  rules  as  to  discov- 
ery, production  of  docmnents,  privilege,  etc.,  apply  to  him. 

3  Stewart  v.  East  India  Co.,  2  Vern.  380;  Anonymous,  3  Atk.  644;  Titten- 
Bon  V.  Peat,  3  Atk.  529. 

*  Jeremy's  Eq.  Jur.  2G0;  Ives  v.  Medcalf,  1  Atk.  03;  Lingood  v.  Croucher, 
2  Atk.  395;  Lonsdale  v.  Littledale,  2  Ves.  451;  Dummer  v.  Corp'n  of 
Chippenham,  14  Ves.  252;  Chicot  v.  Lequesne,  2  Ves.  Sr.  315,  418;  Lindslcy  v. 
James,  3  Cold.  477. 

5  Ballin  v.  Ferst,  55  Ga.  546;  and  see  cases  cited  in  the  three  preceding 
notes. 

(a)  Cited  to  the  cfTect  that  bill  for  305,  44  N.  E.  751,  where  it  was  held 

discovery   docs   not   lie   against  mere  that    a    creditor's    bill    for    discovery 

witnesses  in  Hanloy  v.  Wclmore,   15  alone   cannot   be   maintained   against 

R.  I.  380,  0  Atl.  777;  Hurricane  Tel.  the  debtor's   debtor;    Post  v.   Toledo, 

Co.  V.  Moliler,  51  W.  Va.  1,  41  S.  E.  C.  &  St.  L.  R.  Co.,  144  Mass.  341,  11 

421.    See  also  Detroit  Copper  &  Brass  N.  E.  540,  59  Am.  Rep.  SO. 
Rolling  Mills  Co.  v.  Lcdwidge,  102  111. 


265  THE   AUXILIAKY   JURISDICTION.  §    199' 

compelled  to  disclose  the  facts.®  The  most  important  ex- 
ception is  in  case  of  suits  against  corporations.  Where  it 
is  desired  to  obtain  discovery  from  a  corporation  in  a  bill 
filed  against  it  for  that  purpose,  it  is  firmly  settled  by  the 
authority  of  decided  cases  that  a  secretary  or  some  other 
officer  may  and  must  be  joined  as  a  co-defendant,  from 
whom  the  discovery  may  be  obtained  by  his  answer  under 
oath.  This  exception  is  based  wholly  upon  considerations 
of  expediency,  since  a  corporation  cannot  make  an  answer 
on  oath,  nor  be  liable  for  perjury."  ^  For  the  same  reason, 
the  rule  has  been  extended  by  modern  cases  to  suits  by  and 
cross-bills  against  nations  or  states  which  are  not  mon- 

OBallin  v.  Ferst,  55  Ga.  546;  Bowles  v.  Stewart,  1  Schoales  &  L.  227;  Ben- 
net  V.  Vade,  2  Atk.  324;  Fenwick  v.  Reed,  1  Mer.  114;  Plummer  v.  May,  1 
Ves.  Sr.  426;  Brace  v.  Harrington,  2  Atk.  235;  Dummer  v.  Corp'n  of  Chip- 
penham, 14  Ves.  252,  254;  Jeremy's  Eq.  Jur.  2G0;  Gartland  v.  Nunn,  11 
Ark.  721. 

T  Jeremy's  Eq.  Jur.  260;  Wyeh  v.  Meal,  3  P.  Wnis.  311,  312,  per  Tal- 
bot, L.  C.  (the  leading  case)  ;  French  v.  First  Nat.  Bk.,  7  Ben.  48S;  Fenton 
V.  Hughes,  7  Ves.  288-291,  per  Eldon,  L.  C. ;  Dummer  v.  Corp'n  of  Chip- 
penham, 14  Ves.  252;  Glasscott  v.  Copper  Min.  Co.,  11  Sim.  305;  Ex  parte- 
Tlie  Contract  Co.,  L.  R.  2  Ch.  350;  Gooch's  Case,  L.  R.  7  Ch.  207;  Ayers  v. 
Wright,  8  Ired.  Eq.  229;  Yates  v.  Monroe,  13  111.  212;  Many  v.  Beekman 
Iron  Co.,  9  Paige,  188. 

(b)  Suits  against  Corporations;  tories.  This,  however,  does  not  ex- 
Parties  Defendant. —  The  text  is  cited  cuse  a  corporation  from  answering 
to  the  effect  that  an  officer  should  be  ....  Although  no  officer  or  agent 
made  a  party  in  Virginia  &  A.  Min.  is  made  a  party  to  the  bill,  it  is  still 
&  Mfg.  Co.  V.  Hale,  93  Ala.  542,  9  the  duty  of  the  corporation  to  cause- 
South.  256.  See  also  Roanoke  St.  diligent  examination  to  be  made,  and 
Ry.  Co.  V.  Hicks,  32  S.  E.  295,  96  Va.  give  in  its  answer  all  the  information 
510;  Munson  v.  German-American  derived  from  such  examination;  and 
Fire  Ins.  Co.  (W.  Va.),  47  S.  E.  160.  if  it  alleges  ignorance  without  excuse. 
In  Colgate  v.  Compagnie  Francaise  a  disposition  on  its  part  to  defeat  and 
du  Telegraphe,  23  Fed.  82,  the  court  obstruct  the  course  of  justice  may  be 
said:  "Undoubtedly,  a  corporation  inferred  which  will  justify  the  court 
cannot  be  compelled  to  answer  under  in  charging  it  with  the  costs  of  the 
oath  to  a  bill  in  equity.  It  answers  suit."  In  Continental  Nat.  Bank  v. 
only  under  the  seal  of  the  corporation.  Heilman,  66  Fed.  184,  also,  it  is  held 
It  is  for  this  reason  the  practice  has  that  the  officers  are  not  necessary  par- 
obtained  of  making  the  officers  of  the  ties,  although  it  is  customary  to  makfc 
corporation  parties  to  the  bill  and  re-  them  parties. 
quiring  them  to  answer  the  interroga- 


"^    200  EQUITY   JURISPRUDENCE.  266 

arcliical,  such  as  tlie  United  States  of  America  and  other 
republics.^ 

§  200.  A  Bona  Fide  Purchaser. —  Where  the  defendant  is  a 
bona  fide  purchaser  of  the  property  which  is  the  subject- 
matter  of  the  controversy,  or  which  his  adversary  is  en- 
deavoring to  reach,  for  a  valuable  consideration  actually 
paid,  and  without  notice  of  the  plaintiff's  claim,  he  is  pro- 
tected, not  only  from  relief  concerning  the  property  in  a 
suit  brought  for  that  purpose,  but  he  is  also  freed  from 
the  duty  of  making  discovery,  which  might  otherwise  have 
rested  upon  him,  of  any  facts  and  circumstances  tending 
to  aid  the  plaintiff  in  his  contention  in  a  suit  of  discovery 
alone.  To  constitute  him  a  purchaser  in  good  faith  for  a 
valuable  consideration,  so  as  to  come  within  the  operation 
of  this  equitable  doctrine,  he  must  have  actually  paid  the 
purchase  price  which  forms  the  valuable  consideration.* ' 

8  United  States  v.  Wagner,  L.  R.  2  Ch.  582;  L.  R.  3  Eq.  724;  Prioleau  v. 
United  States  and  Andrew  Johnson,  L.  R.  2  Eq.  659.  See  also  Republic  of 
Costa  Rica  v.  Erlanger,  L.  R.  1  Ch.  Div.  171,  L.  R.  19  Eq.  33;  Republic  of 
Peru  V.  Weguelin,  L.  R.  20  Eq.  140.  In  King  of  Spain  v.  Hullett,  1  Clark 
&  P.  333,  the  house  of  lords  held  that  when  a  foreign  monarch  sues  in  his 
own  name,  he  thereby  submits  himself  to  the  jurisdiction  and  ordinary 
practice  of  the  court;  and  if  the  defendant  files  a  cross-bill  for  a  dis- 
covery, the  king  must  make  his  answer  and  swear  to  it  personally,  as  any 
other  plaintiff  would  be  required  to  do.  This  and  other  cases  also  hold 
that  when  a  foreign  monarch  sues,  tlie  court  regards  him  as  suing  personally, 
and  not  in  any  representative  or  official  character.  It  is  otherwise  when 
a  nation  or  state  sues  in  its  corporate  capacity.  See  also  King  of  the  Sici- 
lies V.  Wilcox,  1  Sim.,  N.  S.,  301 ;  Colombian  Government  v.  Rothschild,  1 
Sim.  94. 

1  Jeremy's  Eq.  Jur.  263,  264;  Stanhope  v.  Earl  Verney,  2  Eden,  81; 
Maundrell  v.  IMaundrell,  10  Ves.  246,  259,  260,  270;  Jones  v.  Powles,  3  Mylne 
&  K.  581,  596-598;  McNeil  v.  Magee,  5  Mason,  269,  270;  Wood  v.  Mann, 
1  Sum.  50G;  Flagg  v.  Mann,  2  Sum.  487;  Willoughby  v.  Willoughby,  1 
Term  Rep.  763,  767,  per  I^ord  Hardwicke.  See  the  whole  subject  of  bona 
fide  purcliasers,  notice,  and  priorities  discussed  in  the  notes  to  Bassett  v. 
Nosworthy,  Cas.  t.  Finch,  102,  and  Le  Neve  v.  Le  Neve,  Anib.  436,  3  Atk. 
646,  1  Ves.  Sr.  64,  in  2  I>ead.  Cas.  Eq.,  4th  Am.  ed.,  1,  4-108,  109,  117-227. 
The  system  of  registering  conveyances,  mortgages,  judgments,  and  other 
encumbrances,  universal  in  the  United  States,  has  rendered  the  equitable 
doctrines  concerning  "  notice,"  "  priorities,"  and  "  bona  fide  purchasers  "  of 

(a)  As  to  the  necessity  of  payment  come  a  boria  fide  purchaser,  see  post, 
of  the  purchase  price  in  order  to  be-        §§  750,  751. 


267  THE    AUXILIARY    JURISDICTION.  §    200 

The  protection  of  bona  fide  purchasers  for  a  valuable  con- 
sideration without  notice  of  opposing  claims  is  a  principle 
running  through  the  entire  equity  jurisprudence,  and  is  one 
of  its  most  righteous  and  efficient  doctrines  in  promoting 
just-ice.  Although  the  general  rules  are  well  settled  that  as 
among  mere  equities  to  the  same  property,  the  one  which  is 
prior  in  time  is  also  prior  in  right,  and  as  between  two 
holders  of  different  equities  to  the  same  property,  the  one 
who  has  also  obtained  a  legal  title  has  thereby  acquired 
the  precedence,  and  that  a  purchaser  without  any  show  or 
semblance  of  title  cannot  claim  protection  as  a  bona  fide  pur- 
chaser from  the  equitable  principle  above  mentioned,"  still 
it  is  not  absolutely  essential  that  a  purchaser  in  good  faith 
for  a  valuable  consideration  and  without  notice,  in  order  to 
come  within  the  meaning  and  operation  of  the  doctrine,  and 
to  be  protected  against  discovery  in  aid  of  his  adversary, 
or  against  relief,  should  always  be  a  purchaser  of  a  legal 
title.  The  principle  upon  which  equity  proceeds  is,  that 
"  if  a  defendant  has  in  conscience  a  right  equal  to  that 
claimed  by  the  person  filing  a  bill  against  him,  although  he 
is  not  clothed  with  a  perfect  legal  title,  this  circumstance, 
in  his  position  as  defendant,  renders  it  improper  for  a 
court  of  equity  to  compel  him  to  make  any  discovery  which 
may  hazard  his  title.  "^    It  is  also  settled,  as  a  corollary 

less  frequent  application  in  this  country  than  in  England;  but  the  same 
doctrines  form  a  part  of  our  equity  jurisprudence,  and  are  constantly  in- 
voked and  applied  by  the  courts  whenever  circumstances  require  or  permit. 

2  Payne  v.  Compton,  2  Younge  &  C.  457 ;  Fitzsimmons  v.  Ogden,  7  Cranch, 
2;  Vattier  v.  Hinde,  7  Pet.  252,  271;  Boone  v.  Chiles,  10  Pet.  177;  and  see 
notes  to  Bassett  v.  Nosworthy,  and  Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq.  1-108, 
109-227. 

SMitford's  Eq.  PI.  (Jeremy's  ed.)  199.  The  substance  of  this  doctrine  is, 
that  courts  of  equity  will  not  take  any  step  against  such  an  innocent  pur- 
chaser, but  will  suffer  him  to  take  every  advantage  which  the  law  gives 
him;  for  there  is  nothing  which  can,  in  the  language  of  equity,  attach  itself 
upon  or  work  on  his  conscience,  in  favor  of  an  adverse  claimant:  Story's 
Eq.  Jur.,  §  1503.  See,  on  this'general  subject,  Payne  v.  Compton,  2  Yoimge 
&  C.  457,  461 ;  Bechinall  v.  Arnold,  1  Vern.  355 ;  Dursley  v.  Fitzhardinge, 
6  Yes.  263;  Jerrard  v.  Saunders,  2  Yes.  458,  per  Loughborough,  L.  C; 
Sennouse  v.   Earl,  2   Yea.   Sr.   450;    Wortley  v.   Birkhead,   2   Yes.   573,   574^ 


§    200  EQUITY   JURISPRUDENCE.  268- 

of  the  principle,  that  a  purchaser  of  property  with  notice 
from  a  bona  fide  purchaser  for  a  valuable  consideration, 
and  without  notice,  acquires  the  rights  of  and  is  entitled  to 
the  same  protection  as  his  grantor."*  These  rules  of  pro- 
tection to  the  innocent  purchaser  are,  of  course,  recognized 
and  acted  upon  by  the  courts  in  administering  relief;  and 
although  they  can  no  longer,  in  many  states,  be  applied  in 
suits  for  a  discovery  to  excuse  him  from  answering,  they 
should  still,  on  principle,  furnish  the  proper  limitations  to 
the  examination  of  such  a  purchaser  as  a  witness  by  his 
adversary,  when  he  is  a  party  to  a  litigation  involving  his 
title,  where  such  examination  has  taken  the  place  of  the 
equitable  suit  for  a  discovery.^ 

Langton  v.  Horton,  1  Hare,  547,  563;  Skeeles  v.  Shearley,  8  Sim.  153,  3 
Mylne  &  C.  112;  Doe  ex  dem.  Coleman  v.  Britain,  2  Barn.  &  Aid.  93;  Wood 
V.  Mann,  1  Sum.  507-509. 

4Varick  v.  Briggs,  6  Paige,  323,  329;  Jackson  v.  McChesney,  7  Cow.  360, 
17  Am.  Dec.  521.  And  see  notes  to  Bassett  v.  Nosworthy,  and  Le  Neve  v. 
Le  Neve,  2  Lead.  Cas.  Eq.  1,  109.  In  fact,  the  rights  once  acquired  by  the 
bona  fide  purchaser  for  a  valuable  consideration,  and  without  notice,  are 
transferred  to  his  heirs,  devisees,  and  other  purely  voluntary  assignees.  It 
has  been  held  in  England  that  a  judgment  creditor,  who  has  taken  the  land 
of  his  debtor  by  an  elegit,  is  not  to  be  regarded  as  a  bona  fide  purchaser  within 
the  meaning  of  the  rule;  and  therefore  such  a  judgment  creditor,  taking 
the  land  of  his  debtor  by  an  elegit,  which  was  subject  to  a  prior  equitable 
mortgage,  of  which  he  had  no  notice  at  the  time  of  executing  the  elegit,  was 
decreed  to  hold  the  land  only  in  subordination  to  the  lien  of  the  equitable 
mortgage:  VVhitworth  v.  Gaugain,  3  Hare,  416.  The  same  has  been  held 
in  this  country  with  respect  to  a  judgment  creditor  who  obtains  title  to  his- 
debtor's  land  by  levy  thereon  under  an  execution:  Hart  v.  Farmers'  and. 
Mech.  Bank,  33  Vt.  252;  Abell  v.  Howe,  43  Vt.  403;  but  see  Danbury  v. 
Robinson,  14  N.  J,  Eq.  213,  82  Am.  Dec.  244. 

(b)   See  also  §  704  et  acq.    In  Ind,  the  discovery  of  certain  papers  and 

Coope,  &  Co.  v.  Emnierson,  L.  R.   12  documents  which  she  alleged  were  ma- 

App.  C.  300,  the  ellect  of  the  judica-  terial  to  her  title.     To  the  prayer  for 

ture   act  of    1873   upon   the   doctrine  discovery,  the  defendants  set  up  that 

that  a  bona  fide  purchaser  was  pro-  they  were   bona  fide  purchasers.     It 

tected   in  a   suit   for  discovery  alone  will    be    noticed    that   the    plaintiff'* 

from  making  discovery  was  discussed.  case,  so  far  as   it  sought  to  recover 

This  was  a  suit  broiiglit  in  tlie  Chan-  the   possession   of  the   land,   was  one 

eery   Division   of  the   High   Court  of  that,   .prior    to    the    judicature    act. 

Justice,    by    the   holder   of    the    legal  would  have  been  enforced  in  a  legal 

title  to  lands,  to  recover  their  jiosses-  action  of  ejectment,  and  tliat  the  dis- 

BJon,  and  in  it  the  plaintilT  claimed  covcry  would  have  been  obtained  in  a 


269 


THE    AUXILIARY   JURISDICTION. 


§  201 


§  201.     III.  The  Nature,  Subject-matter,  and  Objects  of  the 
Discovery  Itself;  that  is,  the  Matters  concerning  Which  the 


bill  brought  for  that  purpose,  to 
which  the  defense  of  bona  fide  pur- 
chaser would  have  been  a  complete  an- 
swer. The  defendants  contended  that 
the  same  protection  was  afforded  them 
in  the  present  action,  and  that  the 
consolidation  of  the  legal  and  equita- 
ble actions  in  the  one  action  author- 
ized by  the  judicature  act  had  made 
no  change  in  the  pre-existing  equita- 
ble rules  as  to  discovery  in  cases  of 
bona  fide  purchaser.  In  disposing  of 
this  contention.  Lord  Chancellor  Sel- 
borne  said:  "The  first  observation 
to  be  made  is,  that  the  court  of  chan- 
cery, when  it  allowed  a  plea  of  pur- 
chase for  valuable  consideration  with- 
out notice  to  a  bill  for  discovery  only, 
allowed  it,  not  to  particular  discovery 

(as,  e.  g.,  of  certain  deeds  and  docu- 
ments), but  to  the  whole,  not  on  the 
ground  that  certain  things  ought  not 
to  be  inquired  into,  but  because  the 
court  ought  not,  as  against  such  a 
purchaser,  to  give  any  assistance 
whatever  to  a  plaintiff  suing  upon  a 
legal  title  in  another  jurisdiction. 
And  upon  the  same  ground,  a  like 
plea  would  have  been  allowed  to  a 
suit  asking  for  more  than  discovery 

(e.  g.,  for  an  injunction  to  restrain 
the  defendant  at  law  from  setting  up 
outstanding  terms),  when  the  object 
of  the  suit  was  still  to  obtain  from 
the  court  of  chancery  assistance  to 
the  suit  of  the  plaintiff  suing  upon 
a  legal  title  in  another  jurisdiction. 
The  defense  was,  in  effect  '  no  equity,' 
which  is  a  different  thing  from  an 
'  equitable  defense.'  It  was  thought 
inequitable,  generally,  that  a  man 
should  defeat  a  legal  title  by  keeping 
back  facts  in  his  own  knowledge,  or 
by  setting  up  outstanding  terms;  it 
was  thought  not  inequitable  that  a 
purchaser  for  value  without  notice 
should  use  any  such  tabula  in  nau- 


fragio  as  best  he  could.  But  in  the 
present  case  there  is  no  suit  in  any 
other  jurisdiction;  the  High  Court  of 
Justice  is  asked,  and  is  competently 
asked,  to  exercise  a  principal  and  not 
an  auxiliary  jurisdiction,  and  to  give 
effect  to  the  legal  title  which  the 
plaintiff  alleges  to  be  in  herself.  If 
a  like  suit  had  formerly  been  brought 
in  the  court  of  chancery  it  would  have 
been  demurrable,  not  because  there 
was  an  equitable  defense,  but  because 
the  title  was  legal,  and  the  plaintiff 
stated  no  equity.  To  abolish  that  di- 
vision of  jurisdictions  was  the  very 

object  of  the  judicature  act 

In  the  class  of  cases  referred  to,  the 
separation  and  division  of  jurisdic- 
tions between  the  courts  of  equity  and 
the  courts  of  common  law  was  the 
real  and  only  ground  on  which  such 
a  defense  was  admitted.  As  against 
an  innocent  purchaser  sued  at  law, 
the  court  of  chanceiy  (having  no  ju- 
risdiction itself  to  try  the  title )  found 
no  equity  requiring  it  to  give  assist- 
ance to  a  proceeding  brought  else- 
where for  that  purpose.  But  it  is 
impossible,  without  departing  from 
that  ground,  to  make  the  same  de- 
fense available  against  discovery 
(otherwise  proper)  in  a  suit  in  which 
it  is  not  available  against  the  re- 
lief, and  in  which  the  High  Court 
has  proper  jurisdiction  to  try,  and 
must  try,  and  determine  the  question 
of  title,  and  accordingly  we  find  that 
there  is  no  instance  of  any  suit  com- 
petently brought  in  the  court  of  chan- 
cery for  relief,  as  well  as  discovery 
in  which  the  defense  of  purchaser  for 
value  without  notice  has  been  held 
available  against  discovery  incident 
to  the  relief,  and  not  against  the  re- 
lief itself  also.  That  defense  was 
never  admitted  as  an  objection  to  par- 
ticular discovery;   it  went  to  all  or 


§    201  EQUITY   JURISPRUDENCE.  270 

PlaintifF  may  Inquire  and  Compel  a  Discovery,  and  the  De- 
fendant must  Answer  and  Make  Discovery.* —  The  funda- 
mental rule  on  this  subject  is,  that  the  plaintiff's  right  to 
a  dis'iovery  does  not  extend  to  all  facts  which  may  be  ma- 
terial to  the  issue,  but  is  confined  to  facts  which  are  material 
to  his  oivn  title  or  cause  of  action;  it  does  not  enable  him 
to  pry  into  the  defendant's  case,  or  find  out  the  evidence 
by  which  that  case  will  be  supported.  The  plaintiff  is 
entitled  to  a  disclosure  of  the  defendant's  title,  and  to  know 
what  his  defense  is,  but  not  to  a  statement  of  the  evidence 
upon  which  the  defendant  relies  to  establish  it.^  ^     This 

1  Jeremy's  Eq.  Jur.  262,  263;  Wigram  on  Discovery,  21,  22;  see  quotation 
ante,  §  195,  note;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  286;  French 
V.  Kainey,  2  Tenn.  Ch.  641;  Richardson  v.  Mattison,  5  Biss.  31;  Kearney 
V.  Jeffries,  48  Miss.  343;  Heath  v.  Erie  R.  R.,  9  Blatch.  316;  Sackvill  v. 
Ayleworth,  1  Vern.  105;  Dursley  v.  Fitzhardinge,  6  Ves.  260;  Allan  v.  Allan,, 
15  Ves.  131;  Janson  v.  Solarte,  2  Youiige  &  C.  127;  Attorney-General  v. 
Corp'n  of  London,  2  Macn.  &  G.  247;  Llewellyn  v.  Badely,  1  Hare,  527; 
Lowndes  v.  Davies,  6  Sim.  468;  Glasscott  v.  Copper  Miners'  Co.,  11  Sim.  305; 
Bellwood  V.  Wetherell,  1  Younge  &  C.  211-218;  Cullison  v.  Bossom,  1  Md.  Ch. 
95;  Phillips  v.  Prevost,  4  Johns.  Ch.  205;  Cuyler  v.  Bogert,  3  Paige,  186; 
Bank  of  Utica  v.  Mersereau,  7  Paige,  517;  King  v.  Ray,  11  Paige,  235; 
Brooks  V.  Byam,  1  Story,  296-301 ;  Langdon  v.  Goddard,  3  Story,  13 ;  Haskell 
V.  Haskell,  3  Cush.  542;  Bethell  v.  Casson,  1  Hem.  &  M.  806.  The  following 
cases  also  illustrate  the  rule,  in  some  of  which  the  discovery  was  held  to 
be  material  to  plaintiff's  case,  and  proper;  in  others  not  to  be  proper, 
because  relating  solely  to  defendant's  defense:  Owen  v.  Wynn,  L.  R.  ft 
Ch.  Div.  29;  Minet  v.  Morgan,  L.  R.  8  Ch.  361,  363,  L.  R.  11  Eq.  234; 
In  re  Leigh's  Estate,  L.  R.  6  Ch.  Div.  256;  Great  Western,  etc.,  Co.  v. 
Tucker,  L.  R.  9  Ch.  376;  Kettlewell  v.  Barstow,  L.  R.  7  Ch.  686  (defend- 
ant was  excused  from  producing  a  pedigree  which  he  swore  positively 
related  solely  to  his  own  title,  and  showed  nothing  concerning  the  plain- 
none.  And  in  those  cases  in  which  union  of  legal  and  equitable  jurisdic- 
thc  court  of  chancery  had  concurrent  tions  would  seem  necessarily  to  fol- 
jurisdiction     with     the     common-law       low. 

courts   upon   legal   titles,  it   was  not  (a)  Cited  with  approval  in  Kelley 

available  against  either  discovery  or       v.  Boettcher,  85  Fed.  55,  29  C.  C.  A. 
relief."     It  was  accordingly  held,  af-        14;   Smythe  v.  New  Orleans  C.  &  B. 
firming  the  judgriicnt  of  the  Court  of       Co.,  34  Fed.  825,  affirmed,  141  U.  S. 
Appeal   (L.  II.  33  Ch.  Div.  323),  that       656,  12  Sup.  Ct.  113. 
the  defendants  were  obliged  to  make  (b)  Facts     Must     be     Material     to 

diflcovery.  That  a  similar  conclusion  Plaintiff's  Title. —  See  also  Benbow 
would  be  reached  in  all  those  Amer-  v.  Low,  L.  R.  16  Ch.  Div.  93  (not  en- 
ican   Btatcfl   where   there   has   been   a       titled  to  stntement  of  defendant's  evi 


271 


THE    AUXILIARY    JURISDICTION. 


§    201 


rule,  however,  must  be  understood  with  the  limitation  that 
the  plaintiff  may  compel  the  discovery  of  all  facts  material 
to  his  own  cause  of  action,  even  though  the  defendant's 

tiff's  title  by  descent,  •which  was  in  issue)  ;  Thompson  v.  Dunn,  L.  R. 
5  Ch.  573;  Chichester  v.  Marquis  of  Donegal,  L.  R.  5  Ch.  497;  Wilson 
V.  Tliornbury,  L.  R.  17  Eq.  517;  Murray  v.  Clayton,  L.  R.  15  Eq.  115  (in  a 
suit  for  infringement  on  a  patent  riglit,  after  a  decree  in  plaintiff's  favor. 


dence)  ;  Bidder  v.  Bridges,  L.  R.  29 
Ch.  Div.  34.  A  plea  that  the  docu- 
ments which  the  bill  seeks  to  discover 
do  not  relate  to  the  plaintiff's  case 
must  be  taken  as  true,  unless  the 
court  can  see  from  the  nature  of  the 
case  or  of  the  documents  that  the 
party  has  misunderstood  the  effect  of 
the  documents;  Roberts  v.  Oppen- 
heim,  L.  R.  26  Ch.  Div.  484.  In  Lyell 
V.  Kennedy,  L.  R.  .8  App.  Cas.  217,  re- 
versing 20  Ch.  Div.  484,  the  Court  of 
Appeal  (Brett,  L.  J.,  and  Jessel,  M. 
R.)  had  held  that  in  an  action  of 
ejectment  it  was  the  settled  practice 
that  the  plaintiff  could  not  have  dis- 
covery even  as  to  his  own  title,  on 
the  ground  that  the  "  plaintiff  in 
ejectment  must  rely  on  the  strength 
of  his  own  title";  but  in  the  House  of 
lords  it  was  shown  that  the  prac- 
tice was  otherwise;  citing  Craw  v. 
Tyrell,  2  Madd.  397;  Wright  v. 
Plumptre,  3  Madd.  481 ;  Pennington 
V.  Berchy,  2  Sim.  &  St.  282 ;  Drake  v. 
Drake,  3  Hare,  523;  Bennett  v.  Glos- 
6op,  3  Hare,  578 ;  Brown  v.  Wales, 
L.  R.  15  Eq.  147;  Butterworth  v. 
Bailey,   15  Ves.  358. 

To  the  effect  that  a  bill  cannot 
be  maintained  for  what  does  not  ap- 
pertain to  and  is  not  necessary  for 
the  title  of  the  plaintiff,  but  ap- 
pertains to  the  title  of  the  defend- 
ant, see  Norfolk  &  W.  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  88  Va.  932,  14 
S.  E.  G89 ;  Sunset  Telephone  &  T.  Co. 
V.  City  of  Eureka,  122  Fed.  961.  As 
holding  that  plaintiff  cannot  seek  dis- 
covery   of    matters    beyond    his    own 


title,  see  also  Kelley  v.  Boettcher,  85 
Fed.  55,  29  C.  C.  A.  14.  Accordingly 
it  has  been  held  that  a  plaintiff  is  not 
entitled  to  an  inspection  of  the  deeds . 
upon  which  defendant  bases  his  right. 
Ryder  v.  Bateman,  93  Fed.  31.  That 
plaintiff  is  entitled  to  a  discovery  of 
defendant's  title,  see  Stone  v.  Mar- 
shall Oil  Co.,  188  Pa.  St.  614,  41  Atl. 
748,  1119.  A  bill  may  be  maintained 
for  the  discovery  of  a  will  under 
which  plaintiff  claims,  Hanneman  v. 
Richter,  62  N.  J.  Eq.  365,  50  Atl.  904. 
Or  of  choses  in  action  in  defendant's 
possession  the  nature  of  which  plain- 
tiff does  not  know.  Smith  v.  Smith's. 
Adm'r,  92  Va.  696,  24  S.  E.  280. 
Courts  of  equity  in  patent  cases  some- 
times grant  an  inspection  of  alleged 
infringing  devices  as  incidental  to  or- 
dinary discovery.  Colgate  v.  Com- 
pagnie  Francaise  du  Telegraphe,  23 . 
Fed.  82.  In  Reynolds  v.  Burgess  Sul- 
phite Fibre  Co.,  71  N.  H.  332,  93  Am. 
St.  Rep.  535,  51  Atl.  1075,  57  L.  R.  A. 
949,  it  was  held  that  a  plaintiff  may 
have  discovery  of  an  article  of  per- 
sonal property  so  that  an  expert  may 
examine  it  before  trial.  The  action 
at  law  was  for  negligence.  In  Plaster 
V.  Throne-Franklin  Shoe  Co.,  123  Ala. 
360,  20  South.  225,  discovery  of  assets 
was  allowed  as  incidental  to  a  cred- 
itor's bill.  In  Clark  v.  Equitable  Life 
Assur.  Soc,  76  Miss.  22,  23  South. 
453,  it  was  allowed  to  determine  the 
profits  of  a  mutual  life  insurance  com- 
pany, as  incidental  to  an  account.  In. 
Hartman  v.  Evans,  38  W.  Va.  669,  1* 
S.  E.  810,  it  was  allowed  to  determine- 


§    201  EQUITY   JURISPRUDENCE.  272 

evidence  may  thereby  be  incidentally  disclosed/  as,  for 
example,  where  the  establishment  of  the  plaintiff's  title  or 
cause  of  action  involves  the  proof  of  fraud ;  and  the  defend- 
ant, besides  discovering  what  the  case  is  on  which  he  re- 
lies, can  be  compelled  to  disclose  all  facts  which  would,  by 
way  of  evidence,  tend  to  imyeach  or  destroy  it,  unless 
otherwise  privileged,  since  such  facts  are  material  evi- 
dence for  his  adversary,  but  is  not  bound  to  disclose  any 
evidence  by  which  he  intends  to  or  may  support  his  case, 
for  such  evidence  cannot  be  material  to  the  plaintiff.^® 

establishing  plaintiff's  right,  and  enjoining  the  defendant,  plaintiflF  is  en- 
titled to  a  discovery  of  all  the  patented  articles  sold  by  defendant,  and 
of  the  names  and  addresses  of  their  purchasers)  ;c  Brown  v.  Wales,  L.  R.  15 
Eq.  142  (in  a  controversy  concerning  title  to  lands  embraced  in  a  certain  con- 
veyance, matters  identifying  the  parcels  of  land  in  dispute  are  part  of  plain- 
tiff's title,  as  well  as  matters  showing  the  devolution  of  the  estate)  ;  Wier 
V.  Tucker,  L.  R.  14  Eq.  25;  Girdlestone  v.  North  Brit.,  etc.,  Ins.  Co.,  L.  R. 
11  Eq.  197;  Bovill  v.  Smith,  L.  R.  2  Eq.  459;  Dixon  v.  Eraser,  L.  R.  2  Eq. 
497;  Saunders  v.  Jones,  7  Ch.  Div.  435,  443. 

2  Stainton  v.  Chadwick,  3  Macn.  &  G.  575 ;  Young  v.  Colt,  2  Blatch.  373. 
In  Attorney-General  v.  Corporation  of  London,  2  Macn.  &  G.  247,  256,  257, 
13  Beav.  313,  Lord  Cottenham  states  in  a  very  clear  and  full  manner  the 
exact  extent  and  limits  of  the  plaintiff's  right  of  discovery  with  respect 
to  matter  relating  to  the  defendant's  defense  and  title,  and  his  opinion  has 
been  regarded  accurate.  The  following  more  recent  decisions  will  further 
illustrate  this  rule:  In  Hoffman  v.  Postill,  L.  R.  4  Ch.  673,  it  was  held 
that  although  the  plaintiff  cannot  have  a  discovery  of  the  evidence  in  sup- 
port of  defendant's  case,  yet  wlien  the  defendant  files  interrogatories,  bo 
may  ask  any  questions  tending  to  defeat  the  plaintiff's  cause  of  action.  While 
this  decision  does  not  claim  that  discovery  by  defendant  is  governed  by  any 
different  principle,  it  plainly  shows  that  more  freedom  is  allowed  to  the  de- 
fendant than  to  the  plaintiff  in  investigating  his  adversary's  case.  To  ex- 
actly the  same  effect  is  the  decision  in  Commissioner,  etc.  v.  Glasse,  L.  R. 
15   Eq.    302.     In   Republic  of   Costa  Rica  v.   Elanger,   L.   R.   19   Eq.   33,   44, 

the  true  character  of  a  loan,  and  to  Tel.  Co.  v.  Mohler,  51   W.  Va.   1,  41 

show  usury.  S.  E.  421. 

"  The  plaintiff  may  restrict  his  (c)  To  the  same  effect,  see  Sac- 
prayer  for  discovery  to  any  matter  char  in  Corporation  v.  Chemicals  & 
or  part  of  the  evidence  to  support  Drugs  Co.,  (1900)  2  Ch.  556. 
his  action  that  he  may  choose.  It  (d)  See  Dock  v.  Dock,  180  Pa.  St. 
would  be  absurd  to  suppose  that,  if  14,  36  Atl.  411,  57  Am.  St.  Rep.  617. 
he  files  a  bill  for  discovery,  he  must  (e)  Quoted  in  Edison  Electric  Light 
call  upon  the  defendant  for  all  the  Co.  v.  U.  S.  Electric  Light  Co.,  45 
evidence  necessary  to  support  the  Fed.  55,  68. 
plaintiff's  action  at  law."     llurricane 


273  THE   AUXTLIAKY   JURISDICTION.  §    201 

As  a  direct  inference  of  this  general  rule,  all  the  facts 
which  the  plaintiff  seeks  to  discover  must  be  material; 
the  defendant  is  never  compelled  to  disclose  matters  which 
are  immaterial  as  evidence  to  support  the  plaintiff's  con- 
tention ;  he  is  never  obliged  to  answer  vexatious  or  imperti- 
nent questions,  asked  from  curiosity  or  malice.^ ' 

45,  per  Malins,  V.  C,  while  it  was  admitted  that,  in  general,  matters  simply 
injurious  to  defendants  case  could  not  be  discovered,  and  that  a  mortgagee 
•or  bona  fide  purchaser  for  value,  in  a  suit  against  him  concerning  the  land, 
cannot  be  compelled  to  disclose  the  title  deeds  of  the  estate  under  which  he 
holds,  this  general  rule  is  subject  to  an  exception;  viz.,  when  a  prima  facie 
'Case  is  stated  impeaching  the  validity  of  these  very  deeds,  on  the  ground  of 
fraud,  or  some  other  ground  which  would  establish  the  plaintiff's  right, 
their  discovery  by  the  defendant  will  be  compelled;  citing,  as  illustrations  of 
this  doctrine,  Beckford  v.  Wildman,  16  Ves.  438;  Balch  v.  Symes,  Turn.  &  R. 
87;  Bassford  v.  Blakesley,  6  Beav.  131,  133;  Kennedy  v.  Green,  6  Sim.  6  (case 
of  a  bo7M  fide  purchaser,  etc.)  ;  Latimer  v.  Neate,  11  Bligh,  112,  4  Clark  &  F. 
570 ;  Follett  v.  JelTeryes,  1  Sim.,  N.  S.,  1 ;  Freeman  v,  Butler,  33  Beav.  289 ; 
Crisp  v.  Platel,  8  Beav.  G2.  And  on  the  rule  that  defendant  must  disclose 
matters  aiding  the  plaintiff's  cause  of  action,  even  though  they  may  al)-o 
-affect  his  own  title  or  defense,  see  Brown  v.  Wales,  L.  R.  15  Eq.  142;  Smith 
V.  Duke  of  Beaufort,  1  Hare,  507 ;  Earp  v.  Lloyd,  3  Kay  &  J.  549 ;  Lo%\Tide3 
V.  Davies,  6  Sim.  468. 

3  Finch  V.  Finch,  2  Ves.  Sr.  492;  Richards  v.  Jackson,  18  Ves.  472;  Jan- 
son  V.  Solarte,  2  Younge  &  C.  127;  Montague  v.  Dudman,  2  Ves.  Sr.  399; 
•Gelston  V.  Hoyt,  1  Johns.  Ch.  548,  549;  Lindslcy  v.  James,  3  Cold.  477; 
Wier  v.  Tucker,  L.  R.  14  Eq.  25;  Minet  v.  Morgan,  L.  R.  8  Ch.  301;  Re- 
public of  Costa  Rica  v.  Erlanger,  L.  R.  19  Eq.  33;  as,  for  example,  in  suits 
against  vendors  or  manufacturers  for  infringing  upon  plaintiff's  trade- 
mark, the  names  of  defendant's  customers  who  have  bought  the  article 
need  not  be  disclosed:  Carver  v.  Pinto  Leite,  L.  R.  7  Ch.  90;  Moore  v. 
Craven,  L.  R.  7  Ch.  94,  note;  but  see  Murray  v.  Clayton,  L.  R.  15  Eq.  115  ;S  and 
see  Jeremy's  Eq.  Jur,  265.  This  special  rule  should  not  be  understood 
as  requiring  that  the  discovery  itself  must  be  material  in  the  sense  that  the 

(f)  Equity  will  not  compel  dis-  bill  of  discovery,  for  the  complainant 
<;overy  of  irrelevant  matters.  Alexan-  to  allege  that  the  matters  as  to  which 
der  V.  Mortgage  Co.,  47  Fed.  131.  In  a  discovery  is  sought  are  material  to 
Gorman  v.  Bannigan,  22  R.  I.  22,  46  the  proving  of  his  action  at  law,  but 
Atl.  38,  the  plaintiff  sought  a  dis-  he  must  state  his  case  in  such  a 
covery  of  the  value  of  an  estate  in  manner  that  the  court  will  be  able 
aid  of  an  action  at  law  for  legal  ser-  to  see  how  such  matters  may  be  ma- 
vices.  It  was  held  that  the  evidence  terial  on  the  trial  thereof." 
sought  was  immaterial  to  the  issue  (s)  Also,  Saccharin  Corporation  v. 
and  that  the  bill  could  not  be  main-  Chemicals  &  Drugs  Co.,  (1900)  2 
tained.  In  this  case  the  court  said:  Ch.  556;  ante,  notes  1  and  (c)  to  this 
"'  Moreover,  it  is  not  sufficient,   in  a  paragraph. 

Vol.  1  —  18 


§    202  EQUITY   JURISPEUDENCE.  274 

§  202.  As  a  general  proposition,  the  discovery,  in  order 
to  be  granted,  must  be  in  aid  of  some  object  which  a  court 
of  equity  can  regard  with  approval,  or  at  least  without  dis- 
approval,—  some  object  which  is  not  opposed  to  good 
morals  or  to  the  principles  of  public  policy  embodied  in 
the  law/  This  doctrine  is  the  foundation  of  several  par- 
ticular rules  regulating  the  practice  of  discovery.  The 
first  of  these  particular  applications  of  the  doctrine  is,  that 
a  defendant  in  the  discovery  suit,  or  in  a  suit  for  relief  as 
well  as  discovery,  is  never  compelled  to  disclose  facts  which 
would  tend  to  criminate  himself,  or  to  expose  him  to 
criminal  punishment  or  prosecution,  or  to  pains,  penalties, 
fines,  or  forfeitures.  He  may  refuse  an  answer,  not  only 
to  the  main,  directly  criminating  facts,  but  to  every  inci- 
dental fact  which  might  form  a  link  in  the  chain  of  evi- 
dence establishing  his  liability  to  punishment,  penalty,  or 
forfeiture.^  ^    This  restriction  upon  the  right  to  a  discovery 

plaintiff  has  no  other  way  of  obtaining  the  evidence;  it  has  been  shown  that 
a  suit  for  discovery  may  be  maintained  solely  on  the  ground  of  convenience, 
and  need  not  be  rested  on  any  necessity.  For  further  illustrations  of  the 
text,  see  cases  cited  in  last  note. 

1  Jeremy's  Eq.  Jur.  2G8 ;  King  v.  Burr,  3  Mer.  693 ;  Cousins  v.  Smith, 
13  Yes,  542;  Rejah  v.  East  India  Co.,  35  Eng.  L.  &  Eq.  283. 

2  Jeremy's  Eq.  Jur.  265-268;  Currier  v.  Concord,  etc.,  R.  R.,  48  N.  H. 
321;  Black  v.  Black,  26  N.  J.  Eq.  431;  East  India  Co.  v.  Campbell,  1  Ves. 
Sr.  246;  Claridge  v.  Hoare,  14  Ves.  59,  65;  Fisher  v.  Owen,  L.  R.  8  Ch. 
Div.  646;  Christie  v.  Christie,  L.  R.  8  Ch.  499;  Lichfield  v.  Bond,  6  Beav. 
88;  Short  v.  Mercier,  3  Macn.  &  G.  205;  Glynn  v.  Houston,  1  Keen,  329; 
United  States  v.  Saline  Bank,  1  Pet.  100;  Horsburg  v.  Baker,  1  Pet.  232- 
236;  Grecnleaf  v.  Queen,  1  Pet.  138;  Ocean  Ins.  Co.  v.  Fields,  2  Story,  59; 
Stewart  v.  Drasha,  4  McLean,  563;  Union  Bank  v.  Barker,  3  Barb.  Ch. 
358;  Northrup  v.  Hatch,  6  Conn.  361;  Skinner  v.  Judson,  8  Conn.  528;  Poin- 
dexter  v.  Davis,  6  Gratt.  481;  Higdon  v.  Heard,  14  Ga.  255;  Marshall  v.  Riley, 
7  Ga.  367;  King  of  the  Sicilies  v.  Wilcox,  1  Sim.,  N.  S.,  301;  United  States 
v.  McRae,  L.  R.  3  Ch.  79. 

(a)  Quoted    in    Robson    v.    Doyle,  aker  Iron  Co.,  41  W.  Va.  574,  23  S.  E. 

191  111.  566,  61  N.  E.  435.    See  United  795;  Cross  v.  McClenahan,  54  Md.  21. 

States  v.  National  I^ead  Co.,  75  Fed.  It  has  been  held  that  in  order  that 

04;  Daisley  v.  Dun,  98  Fed.  497   (an-  the   defendant   may  be  excused   from 

Bwers    would    lay   defendant   open   to  answering  "  it  must  appear,  either  by 

prosecution  for  libell;  Marsh  v.  Davi-  the  bill  of  the  complainant,  or  by  the 

son,  9  Paige,  680 ;  Thompson  v.  Whit-  plea  of  the  defendant,  that  his  answer 


275  THE   AUXTLIAEY   JUKISDICTION.  §    202 

is  subject  to  several  limitations  and  exceptions  necessary  in 
order  to  promote  the  ends  of  justice.  A  defendant  is 
always  compelled  to  disclose  his  frauds  and  fraudulent 
practices,  when  such  evidence  is  material  to  the  plaintiff's 
case,  even  though  the  fraud  might  be  so  great  as  to  expose 
the  defendant  to  a  prosecution  for  conspiracy,  unless  per- 
haps the  indictment  was  actually  pending.^  ^  And  a  party 
may  have  so  contracted  that  he  has  thereby  bound  himself 
to  make  discovery,  although  it  might  subject  him  to  pe- 
cuniary penalties.*  Some  other  grounds  of  limitation  or 
exception  are  stated  in  the  note.** 

SDummer  v.  Corp'n  of  Chippenham,  14  Yes.  245;  Lee  v.  Read,  5  Beav.  381  k 
Janson  v.  Solarte,  2  Younge  &  C.  132,  136;  Green  v.  Weaver,  1  Sim.  404, 
427,  432;  Mitchell  v.  Koecker,  11  Beav.  380;  Robinson  v.  Kitchen,  35  Eng. 
L.  &  Eq.  558;  Currier  v.  Concord,  etc.,  R.  R.,  48  N.  H.  321;  Attwood  v.  Coe, 
4  Sand.  Ch.  412;  Skinner  v.  Judson,  8  Conn.  528,  21  Am.  Dec.  691;  Howell 
V.  Ashmore,  9  N.  J.  Eq.  82,  57  Am.  Dec.  371;  O'Connor  v.  Tack,  2  Brewst.. 
407. 

4  Green  v.  Weaver,  1  Sim.  404;  Lee  v.  Read,  5  Beav.  381. 

B  Where  the  liability  to  a  penalty  is  barred  by  lapse  of  time,  or  where  the- 
right  to  it  held  by  the  plaintiff  has  been  waived  by  him:  Trinity  House- 
Corp'n  V.  Burge,  2  Sim.  411;  Skinner  v.  Judson,  8  Conn.  528,  21  Am.  Dec. 
691;  Northrop  v.  Hatch,  6  Conn.  361;  Dwinal  v.  Smith,  25  Me.  379;  Mit- 
ford's  Eq.  PI.  195-197.  Or  when  the  penalty  is  in  reality  only  liquidated 
damages:  Mitford's  Eq.  PI.  195-197.  And  if  the  so-called  forfeiture  is 
merely  the  termination  or  change  of  the  party's  interest  under  some  condi- 
tional limitation,  the  rule  does  not  apply;  e.  g.,  a  gift  to  a  woman  during 
her  widowhood,  and  if  she  marry,  then  over,  she  must  disclose  whether  she 
has  married:  Hurst  v.  Hurst,  L.  R.  9  Ch.  762;  Chauncey  v.  Tahourden,  2 
Atk.  392;  Lucas  v.  Evans,  3  Atk.  260;  Hambrook  v.  Smith,  17  Sim.  209.  Also 
where  gaming,  stock-jobbing,  and  the  like,  have  been  made  illegal  by  statute, 
and  parties  engaging  therein  liable  to  certain  pecuniary  penalties  or  forfeit- 
may  subject  him  to  punishment,  or  he  That  discovery  may  be  had  in  aid  of 
will  be  compelled  to  make  the  dia-  an  action  for  a  personal  tort,  where 
covery  asked  for  in  the  bill.  As  if  a  it  will  not  expose  the  defendant  to 
bill  states  a  marriage  of  the  defend-  the  liabilities  mentioned  in  the  text, 
ant  with  a  particular  woman,  this  is  see  Reynolds  v.  Burgess  Sulphite 
of  itself  no  offense;  but  if  he  pleads  Fibre  Co.,  71  N.  H.  332,  51  Atl.  1075, 
that  she  is  his  sister,  that  fact  would  93  Am.  St.  Rep.  535,  57  L.  R.  A.  949, 
constitute  the  alleged  marriage  a  and  cases  cited,  ante,  note  (a),  §  197. 
criminal  act,  and  he  may  refuse  to  (b)  See  also  Leitch  v.  Abbott,  L. 
state  anything  more,  or  to  speak  as  R.  31  Ch.  Div.  374;  Postlethwaite  v. 
to  any  fact  or  circumstance  which  Rickman,  L.  R.  35  Ch.  Div.  744.  Be- 
may  form  a  link  in  the  chain."  Wolf  fore  the  defendant  can  be  compelled 
V.   Wolf's   Ex'r,    12   Har.   &   G.   382.       to  discover  concerning  the  transaction 


§    203  EQUITY   JURISPRUDENCE.  27G 

§  203.  Privileged  Communications. —  Another  application 
of  the  general  doctrine  concerning  public  policy  is,  that  no 
disclosure  will  be  compelled  of  matters  a  knowledge  of 
which  has  been  communicated  or  obtained  through  or  by 
means  of  certain  close  confidential  relations,  which  are  care- 
fully guarded  and  protected  from  invasion  or  interference 
by  the  general  policy  of  the  law.  For  this  reason  a  mar- 
ried woman  cannot  be  compelled  to  disclose  facts  tending  to 
establish  any  liability  of  her  husband,  the  knowledge  of 
which  was  acquired  by  her  through  her  marital  relation.^ 
On  the  same  foundation  of  principle  rests  the  important 
rule  that  a  party  will  not  be  compelled  to  disclose  the  legal 
advice  given  him  by  his  attorney  or  counsel,  nor  the  facts 
stated  or  matters  communicated  between  himself  and  them 
in  reference  to  the  pending  suit,  or  to  the  dispute  which 
has  resulted  in  the  present  litigation ;  nor,  on  the  other  hand, 
will  these  professional  advisers  be  compelled  or  permitted 
to  disclose  the  matters  which  they  have  learned  or  commu- 

ures,  a  discovery  is  authorized  by  the  statute,  although  it  niiglit  expose  the 
defendant  to  such  possible  liabilities,  and  therefore  a  suit  for  discovery  of 
sums  lost  at  play,  or  by  stock-jobbing  operations,  and  of  securities  given 
therefor,  may  be  maintained:  Mitford's  Eq.  PI.  288;  Rawden  v.  Shadwell, 
Amb.  2G8;  Newman  v.  Franco,  2  Anstr.  519;  Andrews  v.  Berry,  3  Anstr.  634, 
635;  but  see  Short  v.  Mercier,  3  Macn.  &  G.  205;  Robinson  v.  Lamond,  15 
Jur.  240. 

1  By  the  ancient  law,  a  married  woman  could  not  testify  in  any  civil 
proceeding  either  for  or  against  her  husband,  no  matter  when,  or  where, 
or  how  she  became  informed  of  the  facts.  Under  modern  statutes  per- 
mitting her  to  be  a  witness  generally  in  suits  to  which  he  is  a  party,  the 
limitation  upon  her  discovery  would  doubtless  extend,  as  stated  in  the 
t«xt,  only  to  those  matters  of  which  she  obtained  a  knowledge  through  the 
confidences  of  the  marital  relation :  See  Le  Texier  v.  Margrave  of  Ans- 
pach,  5  Ves.  322,  15  Yes.  159;  Cartwright  v.  Green,  8  Ves.  405,  408;  Barron 
V.  Grillard,  3  Vcb.  &  B.  165. 

claimed  by  the  plaintiff  to  be  fraudu-  to  defeat  discovery,  where  the  corn- 
lent,  it  is  not  necessary  that  the  bill  munication  is  made  in  a  fraudulent 
should  allege  the  particulars  of  the  transaction:  Postlcthwaite  v.  Rick- 
fraud:  Leitch  V.  Abbott,  L.  R.  31  Ch.  man,  L.  R.  35  Ch.  Div.  744;  Williams 
Div.  374;  White  v.  Ahrcns,  L.  R.  26  v.  Imbrada  l^and  and  Copper  Co., 
Cli.  Div.  717.  Nor  can  the  defense  of  (1895)  2  Ch.  751.  See  this  subject 
privileged  communications  be  set  up  further  discussed,  post,  §  203,  note. 


277  THE  AUXILIAKT  jukisdiction.  §   203 

nicated  in  the  same  manner.^  *  With  respect  to  the  nature 
of  the  matter  passing  between  the  client  and  his  attorney  or 
counsel,  the  protection  is  not  absolute  nor  universal.  The 
privilege  from  disclosure  embraces  those  matters  alone  "  in 
which  it  is  lawful  for  the  client  to  ask  and  the  solicitor  to 

2  Bulstrode  v.  Letchmore,  3  Freem.  5,  1  Cas.  Ch.  277 ;  Parkhurst  v.  Lowten, 
2  Swanst.  194,  216;  Sandford  v.  Remington,  2  Yes.  189;  Wilson  v.  Northamp- 
ton, etc.,  R'y  Co.,  L.  R.  14  Eq.  477;  McFarlan  v.  Rolt,  L.  R.  14  Eq.  580;  Minet 
V.  Morgan,  L.  R.  8  Ch.  361;  Currier  v.  Concord,  etc.,  R.  R.,  48  N.  H.  321.  As  to 
the  persons  between  whom  the  privilege  exists,  the  matters  must  have  been 
communicated  between  a  client  and  his  professional  legal  adviser,  or  some 
person  acting  at  the  time  as  that  legal  adviser's  agent  or  clerk,  and  may  be 
made  to  such  legal  adviser  personally,  or  through  the  means  of  any  intermedi- 
ate agent  employed  expressly  to  make  the  communication,  either  by  writing  or 
orally:  Anderson  v.  Bank  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644;  Wilson  v. 
Northampton,  etc.,  R'y  Co.,  L.  R.  14  Eq.  477 ;  McFarlan  v.  Rolt,  L.  R.  14  Eq. 
580 ;  Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547 ;  Goodall  v.  Little,  1  Sim.,  N.  S.,  155 ; 
Lafone  v.  Falkland  Islands  Co.,  4  Kay  &  J.  34;  Reid  v.  Langlois,  1  Macn. 
&  G.  627 ;  Russell  v.  Jackson,  9  Hare,  387 ;  Bank  of  Utica  v.  Mersereau,  3 
Barb.  Ch.  528,  49  Am.  Dec.  189;  Crosby  v.  Berger,  11  Paige,  377,  42  Am.  Dec. 
117;  March  v.  Ludlum,  3  Sand.  Ch.  35;  Stuyvesant  v.  Peckham,  3  Edw.  Ch. 
679;  Parker  v.  Carter,  4  Munf.  273,  6  Am.  Dec.  513;  and  communications 
between  the  party's  predecessors  in  title  and  their  attorneys  have  been  held 
privileged:  Minet  v.  Morgan,  L.  R.  8  Ch.  361.b  Communications  made  to 
or  from,  or  in  the  hearing  of,  the  following  persons  have  been  held  not  to  come 
within  the  rule,  and  not  to  be  privileged.  The  attorney's  son,  who  happened 
to  be  present  in  his  father's  office,  but  not  connected  with  him  in  business: 
Goddard  v.  Gardner,  28  Conn.  172;  a  stranger  who  happened  to  be  present 
at  the  conversation  with  the  attorney:  Jackson  v.  French,  3  Wend.  337, 
20  Am.  Dec.  699;  a  confidential  clerk  of  the  party:  Corps  v.  Robinson,  2 
Wash.  C.  C.  388;  from  a  business  managing  agent  of  the  party:  Anderson 
V.  Bank  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644;  but  see  Ross  v.  Gibbs,  L.  R, 
8  Eq.  522 ;  between  two  co-defendants  after  suit  brought :  Hamilton  v.  Nott, 
L.  R.   16  Eq.   112;   between  defendants  for  the  purpose  of  being  laid  before 

(a)  See  Nat.  Bank  of  West  Grove  gard  to  the  matters  inquired  of,  ex- 

V.  Earle,  196  Pa.  St.  217,  46  Atl.  268;  cept    such    as    he    has    derived    from 

Calcraft   v.    Guest,    (1898)     1    Q.    B.  privileged    communications    made    to 

759,    67   L.   J.   Q.   B.   505,   78   L.   T.  him  by  his  solicitors  or  their  agents, 

(N.    S.)     283,    46    Wkly.    Rep.    420;  and   that    a   belief   founded   on   such 

Lyell  v.  Kennedy,  L.  R.  27  Ch.  Div.  knowledge    or     information     is     pro- 

1 ;  Kennedy  v.  Lyell,  L.  R.  23  Ch.  Div.  tected. 

387,  affirmed,  L.  R.  9  App.  Cas.  81.  (**)  See    also     Calcraft    v.     Guest, 

In  the  last  case  it  was  decided  that  (1898)   1  Q.  B.  759,  67  L.  J.  Q.  B.  505, 

no  discovery  can  be  compelled  where  78  L.  T.   (N.  S.)   283,  46  Wkly.  Rep. 

the    party    swears    that    he    has    no  420. 
knowledge    or    information    with    re- 


.§    203  EQUITY   JURISPRUDENCE.  278 

give  professional  advice  ";  "^  and  therefore  communications 
by  which  fraud  is  contrived  or  arranged  between  a  lawyer 
:and  client  are  wholly  excluded  from  the  privilege,  and  must 
be  divulged.^  With  respect  to  the  time  at  which  the  com- 
munication must  be  made  in  order  to  be  protected,  there 
has  been  no  little  fluctuation  among  the  decisions,  and  the 
rule  cannot  even  now  be  considered  as  settled  with  certainty 

their  attorney:  Gooclall  v.  Little,  1  Sim.,  N.  S.,  155;  but  see  Jenkyns  v. 
Bushby,  L.  R.  2  Eq.  547;  between  the  attorneys  of  the  opposite  piuties: 
•Gore  V.  Bowser,  5  De  Gex  &  S.  30.  Not  only  must  one  of  the  persons 
;be  a  legal  professional  man,  but  the  relation  of  client  and  professional 
adviser  must  actually  be  subsisting  at  the  time  the  communication  is 
made;  therefore  a  communication  will  not  be  privileged  if  made  to  an  at- 
torney at  law,  who  is  acting  simply  as  a  friend  of  the  person  making  it: 
Coon  V.  Swan,  30  Vt.  6;  nor  if  made  after  the  actual  relation  of  client  and 
lawyer  has  ceased:  Yordan  v.  Hess,  13  Johns.  492;  and  the  communication 
must  be  made  to  the  la\vyer  in  consequence  of  and  in  respect  of  his  profes- 
sional character:  Eunbury  v.  Bunbury,  2  Beav.  173;  Greenlaw  v.  King,  1 
Beav.  137;  Dartmouth  v.  Holdsworth,  10  Sim.  476.  In  order  to  be  entitled 
to  the  privilege,  the  matter  need  not  be  communicated  personally  between  the 
■  client  and  his  legal  adviser;  it  may  pass  between  them  through  an  agent: 
Anderson  v.  Bank  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644,  per  Jessel.  M.  R.; 
Bunbury  v.  Bunbury,  2  Beav.  173;  Steele  v.  Stewart,  1  Phill.  Ch.  471; 
Goodall  V.  Little,  1  Sim.,  N.  S.,  155;  Russell  v.  Jackson,  9  Hare,  387;  Jen- 
kyns V.  Bushby,  L.  R.  2  Eq.  547.c 

SReynell  v.  Sprye,  10  Beav.  51,  11  Beav.  618;  Gartside  v.  Outram,  26  L.  J. 
■Ch.  113. e    But  where  the  fraud  was  entirely  on  the  part  of  the  client,  was  not 

(c)  See  also  Lyell  v.  Kennedy,  L.  R.  proof  or  definite  charge  of  any  fraud 
23  Ch.  Div.  382,  ailirmed  in  L.  R.  9  or  illegality  to  displace  the  privi- 
App.  Cas.  81.  lege),    reversing    Reg.    v.    Bullivant, 

(d)  The  privilege  from  discovery  (1900)  2  Q.  B.  163,  69  L.  J.,  Q.  B., 
does  not  extend  to  facts  communicated  657,  82  L.  T.  (N.  S.)  493  ("the 
by  a  solicitor  to  his  client  which  can-  privilege  does  not  extend  to  commimi- 
not  be  the  subject  of  a  confidential  cations  which  came  into  existence  for 
communication  between  them,  even  the  purpose  of  the  client's  procuring 
though  such  facts  have  a  relation  to  advice  as  to  the  mode  in  which  he 
the  case  of  the  client  in  the  action:  might  evade  the  provisions  of  a  co- 
Foakea  v.  Webb,  28  Ch.  Div.  287.  So  lonial  statute  imposing  a  duty  in  re- 
held  as  to  information  derived  by  the  spoct  of  property"),  and  following 
client  from  his  solicitor  of  the  fact  Simms  v.  Registrar  of  Probates,  (1900; 
that  the  solicitor  had  had  correspond-  App.  Cas.  (Privy  Coun.)  323;  Wil- 
ence  with  the  solicitor  of  his  advcr-  Hams  v.  Imbrada  R.  R.  Land  &  Cop- 
sary  concerning  the  subject-matter  of  per  Co.,  (1895)  2  Ch.  751;  Postle- 
the  action.  thwaite  v.  Hickman,  L.  R.  35  Ch.  Div. 

(«-•)   Biillivunt    V.    Attorney  (Jcticral,       744. 
(1901)    App.    Cas.    (II.    L.)     196    (no 


279  THE    AUXILIARY    JURISDICTION.  §    203 

and  uniformity,  botli  throughout  all  the  states  of  this 
country  and  England,  although  it  is  settled  at  last  in  Eng- 
land by  the  most  recent  decisions.  It  is  well  established 
that  a  lawyer  who  has  been  consulted  professionally  will 
not  be  compelled  nor  permitted  to  disclose  the  matters 
passing  between  himself  and  the  client,  at  whatever  time 
the  communication  was  made,  whether  during  the  pendency 
of  the  litigation,  or  in  contemplation  of  a  litigation,  after 
the  dispute  resulting  in  it  had  begun,  or  even  before  any 
dispute  had  arisen  or  any  litigation  was  anticipated.*  It 
is  equally  well  established  that  the  client  cannot  be  com- 
pelled to  disclose  the  advice  or  opinion  which  he  has  at  any 
time  professionally  received  from  his  legal  adviser.'^  The 
fluctuation  and  discrepancy  in  the  decisions  relate  to  the 
liability  of  the  client  to  make  discovery  of  the  matters 
which  he  has  himself  laid  before  his  attorney  or  counsel 

imputed  to  the  attorney,  and  was  therefore  collateral  to  the  communication 
between  them,  the  communication  was  held  to  be  privileged:  Mornington  v. 
Mornington,  2  Johns.  &  H.  697.  In  the  very  recent  case  of  Anderson  v.  Bank 
of  British  Columbia,  L.  R.  2  Ch.  Div.  644,  the  doctrine  of  privileged  communi* 
cations  as  it  now  stands  under  the  modern  decisions,  and  according  to  the  new 
procedure  substituted  in  place  of  the  "  bill  of  discovery,"  was  fully  examined 
by  Sii  George  Jessel,  M.  R.  The  following  eases  also  illustrate  what  is  and 
what  id  not  privileged :  Private  and  confidential  letters  from  a  stranger  to  de- 
fendant must  be  produced  by  him,  although  the  sender  forbid;  but  plaintiff 
may  be  required  to  give  an  undertaking  not  to  use  them  for  other  purposes 
than  as  requisite  for  his  litigation:  Hopkinson  v.  Lord  Burghley,  L.  R.  2  Ch. 
447 ;  as  to  letters  being  the  joint  property  of  sender  and  receiver,  see  Pope  v. 
Curl,  2  Atk.  342;  but  that  the  sender  cannot  prevent  their  production  when 
required  for  the  ends  of  justice,  see  Gee  v.  Pritchard,  3  Swanst.  402;  Wil- 
liams v.  Prince  of  Wales  Life  Ins.  Co.,  23  Beav.  338.  On  the  general  rule  as 
to  what  is  privileged:  Cossey  v.  London,  etc.,  R'y,  L.  R.  5  Com.  P.  146  (report 
of  the  company's  medical  man  about  an  accident  to  plaintiff)  ;  Smith  v. 
Daniell,  L.  R.  18  Eq.  649  (letters  written  to  counsel,  but  not  sworn  to  be 
"confidential  ")  ;  Heath  v.  Crealock,  L.  R.  15  Eq.  257  (attorney  of  a  defendant 
who  had  absconded  not  compelled  to  disclose  his  address,  so  that  plaintiff 
might  make  personal  service  of  process  on  him,  although  a  personal  ser- 
vice was  required  by  the  practice). 

4  The  rule  is  thus  settled  whether  the  lawyer  is  examined  as  an  ordinary 
witness,  or  whether  he  is  joined  as  a  party  defendant  for  purpose  of  dis- 
covery: Herring  v.  Clobery,  1  Phill.  Ch.  91;  Jones  v.  Pugh,  1  Phill.  Ch.  96; 
Green ough  y.  GaskeU,  1  Ik^lne  &  K.  (>&. 

f-  Ibid. 


§    203  EQUITY   JURISPRUDENCE.  280 

as  the  basis  of  professional  advice.  It  was  at  one  time 
settled  by  the  decisions,  and  the  rule  was  generally  under- 
stood and  acted  upon,  both  in  England  and  in  the  United 
States,  and  perhaps  is  still  so  acted  upon  in  this  country, 
that  statements  of  fact  made  to  a  lawyer,  and  even  written 
*'  cases  "  laid  before  him  for  his  opinion,  before  any  dis- 
pute  has  arisen,  and  therefore  not  in  contemplation  of  an 
impending  or  anticipated  litigation,  are  not  embraced 
within  the  privilege,  but  must  be  disclosed  or  produced  by 
the  client  at  the  instance  of  his  adversary  in  any  subse- 
quent judicial  controversy.®  Whatever  may  be  thought  of 
the  correctness  of  this  particular  rule,  it  is  well  settled  in 
England,  and  generally  in  the  United  States,  that  facts- 
stated  or  communications  made  by  a  client  to  his  lawyer, 
either  personally  or  by  means  of  an  intermediate  agent,  con- 
cerning the  controversy,  while  a  litigation  is  actually  pend- 
ing, or  before  the  litigation  has  commenced,  hut  after  the 
dispute  has  arisen  which  tends  to  a  litigation,  and  in  con- 
templation of  such  anticipated  litigation,  are  entitled  to  the 

ORadcliffe  v.  Fursman,  2  Brown  Pari.  C.  514;  Bolton  v.  Corporation  of 
Liverpool,  3  Sim.  467,  1  Mylne  &  K.  88;  Greenough  v.  Gaskell,  1  Myliio 
&  K.  98,  115,  per  Lord  Brougham;  Walker  v.  Wildman,  6  Madd.  «fe  G.  47,  pei" 
Sir  John  Leach;  Knight  v,  Waterford,  2  Younge  &  C.  39,  per  Lord  Abinger; 
Hawkins  v.  Gathorcole,  1  Sim.,  N.  S.,  150;  Lord  Walsingham  v.  Goodricke, 
3  Hare,  122;  Paddon  v.  Winch,  L.  R.  9  Eq.  666.  Radcliffe  v.  Fursman,  2 
Brown  Pari.  C.  514,  is  the  leading  case  in  which  the  rule  is  supposed  to 
have  been  laid  down,  and  the  subsequent  decisions  have  been  made  wliolly 
upon  its  authority  as  the  judgment  of  the  highest  appellate  court,  the 
judges  considering  themselves  bound  by  it,  although  denying  its  correctness 
071.  principle,  and  sometimes  severely  criticising  it:  See  Richards  v.  Jackson, 
18  Yes.  474;  Preston  v.  Carr,  1  Younge  Si  J.  179;  Newton  v.  Berresford,  1 
Younge,  378;  and  per  Lord  Brougham  and  Lord  Abinger,  in  the  cases  cited 
above.  But  in  truth  no  such  general  rule  was  laid  down  or  involved  in  the 
case  of  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514;  and  the  subsequent  de- 
cisions made  upon  its  authority  have  proceeded  upon  an  entire  misapprehen- 
eion  of  its  facts.  This  result  is  established  in  the  most  convincing  manner 
by  the  writer  of  an  article  in  the  Law  Magazine,  vol.  17,  p.  51  (Feb.,  1837), 
who,  by  a  masterly  analysis  of  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514, 
and  of  subsequent  cases,  demonstrates  the  correctness  of  his  conclusion. 
These  views  of  the  article  referred  to  have  been  fully  adopted,  and  the  au- 
thority of  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514,  and  of  the  cases 
following  it,  has  been  completely  overthrown  by  the  very  recent  Englisb 
deciaionB  cited  in  a  Bubaequent  note. 


281  THE    AUXILIARY    JURISDICTION.  §    203- 

privilege  on  the  part  of  tlie  client  who  communicates,  as 
well  as  on  the  part  of  the  attorney  or  counselor  who  re- 
ceives. The  client  cannot  be  compelled  to  discover  the  facts 
stated,  nor  to  produce  the  written  case  submitted  for  pro- 
fessional advice  and  opinion,  under  these  circumstances.' 
There  has  always  been  much  dissatisfaction  with  these  doc- 
trines supposed  to  have  been  established  upon  authority  of 
the  house  of  lords,  both  among  the  profession  and  the 
judges,  and  this  opposition  has  finally  triumphed.  It  is  now 
settled  hj  the  latest  decisions  in  England,  that  a  party  will 
not  be  compelled  to  disclose  matters  otherwise  privileged, 
confidentially  communicated,  relating  to  questions  con- 
nected with  an  existing  judicial  controversy,  although  the 
communication  was  made  before  any  dispute  arose,  and  was 
therefore  not  in  contemplation  or  anticipation  of  any  im- 
pending or  expected  litigation.®    Upon  the  same  considera- 

i  Bolton  V.  Corporation  of  Liverpool,  3  Sim.  4G7,  1  Mylne  &  K.  88;  Green- 
ough  V.  Gaskell,  1  Mylne  &  K.  98,  115;  Warde  v.  Warde,  1  Sim.,  N.  S., 
18,  3  Macn.  &  G.  365;  Bluck  v.  Galesworthy,  2  GiflF.  453;  Jenkyns  v.  Bushby, 
L.  R.  2  Eq.  547;  McLellen  v.  Longfellow,  32  Me.  494,  54  Am.  Dec.  599; 
McMannus  v.  State,  2  Head,  213.  Notwithstanding  the  strong  current  of 
modern  authority,  and  the  tendency  to  maintain  and  even  to  extend  the 
privilege,  it  has  still  been  held  that  no  statements  are  protected  from  dis- 
closure unless  made  during  the  actual  pendency  of  a  judicial  proceeding  to 
which  they  relate:     Whiting  v.  Barney,  30  N.  Y.  330,  86  Am.  Dec.  385. 

8  This  conclusion  was  reached  by  the  court  of  appeal  in  chancery,  in 
Minet  v.  Morgan,  L.  R.  8  Ch.  361,  in  a  most  able  opinion  by  Lord  Chancellor 
Selborne,  which  contains  a  thorough  review  of  the  leading  decisions,  and 
discussion  of  the  subject  on  principle,  and  overthrows  the  supposed  author- 
ity of  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514,  and  cases  which  had  fol- 
lowed it.  Tlie  same  view  is  maintained  in  the  following  cases,  some  of  them 
decided  before  and  some  after  Minet  v.  Morgan,  L.  R.  8  Ch.  361,  viz.: 
Pearse  v.  Pearse,  1  De  Gex  &  S.  12;  Lawrence  v.  Campbell,  4  Drew.  485; 
McFarlan  v.  Rolt,  L.  R.  14  Eq.  580;  Turton  v.  Barber,  L.  R.  17  Eq.  329; 
Wilson  V.  Northampton,  etc.,  R'y  Co.,  L.  R.  14  Eq.  477;  Walsham  v.  Stain- 
ton,  2  Hem.  &  M.  1 ;  Manser  v.  Div,  1  Kay  &  J.  451.« 

In  addition  to  the  cases  heretofore  cited,  the  following  are  illustrations  of 
the  general  doctrines  concerning  confidential  communications  which  are 
privileged:     Nias  v.  Northern,  etc.,  R'y  Co.,  3  Mylne  &  C.  355,  357,  per  Lord 

(f)  See     also     Calcraft     v.     Guest,       Rep.    420;     Goldstone    v.     William*, 
(1898)    1  Q.  B.  759,  67  L.  J.   (Q.  B.)        Deacon  &  Co.,  (1899)   1  Ch.  47. 
505,  48  L.  T.   (N.  S.)   283,  46  Wkly. 


§    204  EQUITY   JURISPEUDENCB.  282 

tion  of  public  policy  controlling  discovery,  the  rule  is  set- 
tled that  governmental  officers,  whether  civil  or  military, 
are  not  compelled  to  disclose  matters  of  state,  where  the 
public  interests  might  be  harmed  by  such  a  disclosure,  at 
the  suit  of  a  private  individual.^ 

§  204.  Manner  of  Making  Discovery. —  Having  thus  ascer- 
tained what  matters  are  exempt  from  a  discovery,  and  of 
what  a  discovery  will  be  compelled,  it  remains  to  consider 
certain  settled  rules  concerning  the  manner  in  which  the  dis- 
covery must  be  made  by  the  defendant.  1.  Assuming  that 
the  matters  called  for  are  proper  subjects  of  a  discovery; 
that  they  belong  to  the  plaintiff's  case,  and  not  to  the  de- 
fendant's; that  they  are  not  privileged,  or  are  not  exempt 
within  the  operation  of  any  other  doctrine, —  then  the  de- 
fendant must  disclose  all  material  facts;  in  other  words, 
if  he  answers  at  all,  he  must  answer  fully.  The  court  will, 
however,  in  the  exercise  of  its  discretion,  judge  of  the  ma- 
teriality, and  guard  him  against  oppressive,  vexatious,  or 
impertinent  inquiries.^     2.  The  answers  of  the  defendant 

Cottenham;  Flight  v.  Robinson,  8  Beav.  22;  Reynell  v.  Sprye,  10  Beav.  51; 
Simpson  v.  Brown,  33  Beav.  482;  Galley  v.  Richards,  19  Beav.  401;  Beadon  v. 
King,  17  Sim.  34;  Goodall  v.  Little,  1  Sim.,  N.  S.,  155;  Garland  v.  Scott, 
3  Sim.  396;  Gresley  v.  Mousley,  2  Kay  &  J.  288;  Lafone  v.  Falkland  Islands 
Co.,  4  Kay  &  J.  34;  Russell  v.  Jackson,  9  Hare,  387;  Chant  v.  Brown,  9 
Hare,  790;  Glyn  v.  Caulfield,  3  Macn.  &  G.  463;  Storey  v.  Lord  Lennox, 
1  Mylne  &  C.  525;  Burrell  v.  Nicholson,  1  Mylne  &  K.  680;  Hughes  v.  Bid- 
<lulph,  4  Russ.  190;  Herring  v.  Clobery,  1  Phill.  Ch.  91;  Thompson  v.  Falk, 
1  Drew.  21;  Charlton  v.  Coombes,  4  Giff.  372;  Nicholl  v.  Jones,  2  Hem.  &  M. 
588;  Combe  v.  Corporation  of  London,  15  L.  J.  Ch.  80;  Ross  v.  Gibbs,  L.  R. 
8  Eq.  522;  Parker  v.  Carter,  4  Munf.  273,  6  Am.  Dec.  513;  Chew  v.  Farmers' 
Bank,  2  Md.  Ch.  231;   Williams  v.  Fitch,  18  N.  Y.  546.B 

» Smith  V.  East  India  Co.,  1  Phill.  Ch.  50;  Rajah  of  Coorg  v.  East  India 
Co.,  25  L.  J.  Ch.  345,  3G5 ;  and  see  Marbury  v.  Madison,  1  Cranch,  49. 

1  This  particular  rule,  however,  is  chiefly  one  of  practice  in  framing  an 
answer,  and  applies  to  suits  for  discovery  and  relief,  as  well  aa  those  for 

(ST)  See  also  Ainsworth  v.  Wilding,  of  affidavits  in  a  court  of  lunacy,  at 

(1900)    2  Ch.  315,  69  L.  J.  Ch.  695,  the  discretion  of  the  court,  see  In  re 

49  Wkly.  Rep.  539 ;  Goldstone  V.  Wil-  Strachan,    (1895)    1    Ch.   441.      That 

liamfl,   (1898)    1  Ch.  47,  68  L.  J.  Ch.  trade  secrets  are  privileged,  see  Fed- 

24,  79  L.  T.    (N.  S.)    373,  47  Wkly.  eral  Mfg.  &  Printing  Co.  v.  Interna- 

Rep.  91  (as  to  notes  of  proceedings  tioniil  Bank  Note  Co.,  119  Fed-  386. 
in  open  court).     As  to  tlu;  inspection 


283  THE    AUXILIARY   JURISDICTION.  §    204 

must  be  complete,  so  that  tlie  information  which  they  give 
will  be  of  substantial  use  to  the  plaintiff;^  and  must  be  to 
the  best  of  the  defendant's  knowledge,  information,  and 
belief.  A  defendant  is  bound  to  obtain  information  from 
all  means  reasonably  within  his  power.  If  documents  are 
ordered  to  be  produced,  it  is  no  excuse  for  non-production 
that  they  are  in  the  possession  of  a  third  person,  or  even 
that  a  third  person  has  a  lien  upon  or  an  interest  in  them.'' 

a  discovery  alone.  It  means  that  if  the  defendant  does  not  raise  any  ques- 
tion by  plea  or  demurrer  to  the  bill,  but  answers,  he  must  make  a  full  dis- 
covery as  to  all  matters  inquired  of;  he  caimot,  in  his  answer,  deny  a  por- 
tion of  the  plaintiff's  allegations,  and  then  claim  that  a  discovery  as  to  such 
portion  is  made  immaterial:  Saimders  v.  Jones,  L.  R.  7  Ch.  Div.  435,  443; 
Lancaster  v.  Evors,  1  Phill.  Ch.  349;  Reade  v.  Woodruff e,  24  Beav.  421; 
Chichester  v.  Marquis  of  Donegal,  L.  R.  4  Ch.  416,  L.  R.  5  Ch.  497;  Thomp- 
son v.  Dunn,  L.  R.  5  Ch.  573;  Carver  v.  Pinto  Leite,  L.  R.  7  Ch.  90;  Elmer 
V.  Creasy,  L.  R.  9  Cli.  69,  and  cases  cited  per  Lord  Selborne;  SauU  v.  Browne, 
L.  R.  9  Ch.  364;  Hurst  v.  Hurst,  L.  R.  9  Ch.  762;  Moore  v.  Craven,  L.  R. 
7  Ch.  94,  note;  Hichens  v.  Congreve,  4  Russ.  562;  West  of  Eng.,  etc..  Bank 
v.  Nickolls,  L.  R.  6  Ch.  Div.  613;  Marquis  of  Donegal  v.  Stewart,  3  Ves.  440; 
Brookes  v.  Boucher,  8  Jur.,  N.  S.,  639;  Inglessi  v.  Spartali,  29  Beav.  564; 
Wier  V.  Tucker,  L.  R.  14  Eq.  25,  and  cases  cited;  Meth.  Epis.  Church  v. 
Jaques,  1  Johns.  Ch.  65;  Phillips  v.  Provost,  4  Johns.  Ch.  205;  Cuyler  v. 
Bogert,  3  Paige,  186;  Bank  of  Utica  v.  Mersereau,  7  Paige,  517;  King  v. 
Ray,  11  Paige,  235;  Champlin  v.  Champlin,  2  Edw.  Ch.  362;  Waring  v. 
Suydam,  4  Edw.  Ch.  426;  Brooks  v.  Byam,  1  Story,  296;  Langdon  v.  Goddard, 
3  Story,  13;  Kittridge  v.  Claremont  Bank,  3  Story,  590;  Wootten  v.  Burch, 
2  Md.  Ch.  190;  Hagthorp  v.  Hook,  1  Gill  &  J.  272;  Salmon  v.  Clagett,  3 
Bland,  142;  Robertson  v.  Bingley,  1  McCord  Eq.  333;  French  v.  Rainey,  2 
Tenn.  Ch.  641;  Shotwell  v.  Struble,  21  N.  J.  Eq.  31;  Walter  v.  McNabb,  1 
Heisk.  703. 

2  As,  for  example,  when  accounts  are  called  for,  they  must  be  reasonably 
made  out,  and  not  simply  the  books  through  which  the  items  are  scattered, 
produced  for  inspection:  White  v.  Williams,  8  Ves.  193;  Attorney-General 
v.  East  Retford,  2  Mylne  &  K.  35;  Drake  v.  Symes,  John.  647;  but  this  is 
a  matter  under  the  discretionary  control  of  the  court,  and  a  defendant  will 
not  be  subjected  to  unreasonable  labor  and  expense:  See  Christian  v.  Taylor, 
11  Sim.  401. 

SGlengall  v.  Frazer,  2  Hare,  99;  Stuart  v.  Bute,  11  Sim.  442;  Taylor  v. 
Rimdell,  Craig  &  P.  104,  1  Phill.  Ch.  222;  Clinch  v.  Financial  Corporation, 
L.  R.  2  Eq.  271.  Where  a  defendant,  who  was  bound  to  produce  certain 
documents,  had  become  a  bankrupt,  and  had  changed  his  attorneys,  and  tha 
documents  were  in  the  possession  of  his  former  attorneys,  who  had  a  lien 
upon  them  for  their  charges,  this  was  held  to  be  no  excuse,  and  he  was 
ordered  to  produce  them:  Vale  v.  Oppert,  L.  R.  10  Ch.  340,  342;  but  James, 
L.  J.,  said  that  an  attorney  cannot  set  up  his  lien  as  against  the  right  of 


§    205  EQUITY   JURISPRUDENCE.  284 

But  if  documents  belong  wholly  or  in  part  to  a  third  per- 
son, not  a  party  to  the  snit,  their  production  will  not  be- 
compelled.*  3.  The  answers  must  be  distinct,  positive  in 
their  statements,  not  leaving  facts  to  be  inferred  argu- 
mentatively,  and  giving  specific  replies  to  specific  ques- 
tions;^ but  must  not  be  unnecessarily  minute  and  prolix, 
especially  in  setting  forth  accounts.^ 

§  205.  Production  and  Inspection  of  Documents.* — A  branch 
of  this  general  subject  of  discovery  is  the  doctrine  con- 
cerning the  production  and  submission  to  inspection  by 

other  parties  to  have  a  production;  and  to  the  same  effect  is  Belaney  v. 
Ffrench,  L.  R.  8  Ch,  918.  See  also,  as  to  the  production  of  documents  in 
the  possession  of  third  persons,  etc.,  Ex  parte  Shaw,  Jacob,  270;  Rodick 
V.  Gandell,  10  Beav.  270;  Palmer  v.  Wright,  10  Beav.  234;  North  v.  Huber,. 
7  Jur.,  N.  S.,  767;  In  re  Williams,  7  Jur.,  N.  S.,  323;  Liddell  v.  Norton, 
23  L.  J.  Ch.  169;  Bethell  v.  Casson,  1  Hem.  &  M.  806.  It  is  no  excuse  for 
the  non-production  of  documents  that  third  persons,  not  parties  to  the  suit, 
are  interested  in  them:  Kettlewell  v.  Barstow,  L.  R.  7  Ch.  686.  Answers 
on  information  and  belief  may  be  required:     Fry  v.  Shehee,  55  Ga.  208. 

4  Hadley  v.  McDougall,  L.  R.  7  Ch.  312;  Warrick  v.  Queen's  College^ 
L.  R.  4  Eq.  254;  Vyse  v.  Foster,  L.  R.  13  Eq.  602;  but  the  nature  and  extent 
of  such  third  person's  ownership  must  be  explained  when  this  excuse  is  set 
up:     Bovill  V.  Cowan,  L.  R.  5  Ch.  495. 

sFaulder  v.  Stuart,  11  Yes.  296;  Wharton  v.  Wharton,  1  Sim.  &  St.  235; 
Tipping  V.  Clarke,  2  Hare,  383,  389;  AnonjTiious,  2  Younge  &  C.  310;  Duke 
of  Brunswick  v.  Duke  of  Cambridge,  12  Beav.  281. 

6  Norway  v.  Rowe,  1  Mer.  346;  Byde  v.  Masterman,  Craig  &  P.  265;  but 
documents  are  sometimes  permitted  to  be  given  in  extenso:  See  Parker  t.- 
Fairlie,  1  Sim.  &  St.  295;  Lowe  v.  Williams,  2  Sim.  &  St.  574. 

(a)  Personal  and  Real  Property,  to  property  in  dispute  in  the  action 
other  than  Documents,  in  Defendant's  at  law,  or  that  they  are  relevant  to- 
Possession. —  The  riglit  to  the  produc-  an  accounting  between  the  parties 
tion  and  inspection  of  property,  other  sought  in  such  action:  Anonymous, 
than  documents,  in  the  possession  of  2  Ves.  Sr.  620;  Moodalay  v.  Morton, 
the  defendant  in  a  bill  of  discovery,  1  Bro.  C.  C.  409;  Burrell  v.  Nichol- 
was  examined  with  great  care  in  the  son,  1  Mylne  &  K.  080;  Storey  v. 
recent  case  of  Reynolds  v.  Burgess  Lennox,  1  Mylne  &  C.  523;  Smith  v. 
Sulphite  Fiber  Co.,  71  N.  H.  332,  51  Beaufort,  1  Hare,  507;  Chadwick  v. 
Atl.  1075,  93  Am.  St.  Rep.  535,  57  Bowman,  L.  R.  16  Q.  B.  Div.  561; 
L.  R.  A.  949.  The  following  are  the  Peck  v.  Ashley,  12  Met.  478.  Discov- 
chief  points  in  the  opinion  of  the  ery  of  personal  property  other  than 
court,  by  Chase,  J.:  The  riglit  of  documents  was  had  in  Marsden  v, 
discovery  in  respect  of  documents  Panshall,  1  Vern.  407  (1086);  Mac- 
docs  not  depend  upon  the  fact  that  clcsficld  v.  Davis,  3  Ves.  &  B.  10,  and 
the  documents  are  muniments  of  title  in  the  following  patent  cases:    Boviil' 


285  THE   AUXILIARY   JURISDICTION.  §    205 

the  plaintijff  of  documents  which  the  defendant  admits  to 
be  in  his  possession,  and  which  are  liable  to  a  discovery. 
I  shall  state  the  particular  rules  regulating  the  operation 
of  this  doctrine,  without  repeating  those  which  are  com- 
mon to  it,  and  to  all  other  kinds  of  discovery.'  It  should 
be  carefully  borne  in  mind  that  the  doctrine  concerning 
the  production  and  inspection  of  documents  relates  entirely 
to  their  disclosure  for  the  purpose  of  being  used  as  evi- 
dence, or  to  aid  in  the  trial  of  a  pending  or  contemplated 
litigation,  and  has  no  connection  whatever  with  the  own- 
ership of  or  final  right  of  possession  to  the  documents  in 
question.**  In  most  instances,  the  ownership  of  the  docu- 
ments sought  to  be  produced  will  not  be  at  all  in  issue. 
JBut  even  in  an  action  expressly  brought  to  establish  the 
plaintiff's  title  to  documents  and  to  recover  their  posses- 
sion, the  production  of  them  before  the  hearing  must  be 
governed  by  the  settled  rules  as  to  discovery.  The  plain- 
tiff has  otherwise  no  right  to  possess  or  to  see  them  until  a 
decree  is  rendered  in  his  favor;  for  such  right  is  the  very 
matter  in  issue,  and  to  decide  that  it  existed  would  be  to 

1  The  rules  as  to  materiality,  as  to  purposes  for  which  a  disclosure  is 
proper,  as  to  what  is  privileged,  and  the  like,  apply  with  equal  force  to  this 
and  to  other  instances  of  discovery.  In  fact,  a  large  number  of  the  decisions 
-already  cited  illustrating  these  rules  relate  directly  to  the  production  of 
documents. 

y.  Moore,  2  Coop.  Ch.  Cas.  56  (Lord  spection  of  fragments  of  machinery 
JJldon)  ;  Browne  v.  Moore,  3  Bligh,  in  the  possession  of  the  defendant, 
178;  Russell  v.  Cowley,  1  Web.  Pat.  in  aid  of  the  proper  preparation  of 
Cas.  457 ;  Morgan  v.  Seaward,  1  Web.  the  plaintiff  for  a  trial  of  a  suit  at 
Pat.  Cas.  167;  Patent  Type  Foimding  law  for  personal  injuries  caused  by 
Co.  V.  Walter,  John.  727.  Inspection  the  defendant's  negligence. 
of  real  property  was  ordered  in  Lons-  (b)  Cited  to  this  effect  in  Reynolds 
dale  V.  Curwen,  3  Bligh,  168;  Walker  v.  Burgess  Sulphite  Fibre  Co.,  71 
V.  Fletcher,  3  Bligh,  172;  East  India  N.  H.  332,  51  Atl.  1075,  57  L.  R.  A. 
Co.  V.  Kynaston,  3  Bligh,  153 ;  Attor-  949,  93  Am.  St.  Rep.  535.  An  in- 
ney-General  v.  Chambers,  12  Beav.  spection  of  books,  etc.,  can  be  had 
159;  Lewis  v.  Marsh,  8  Hare,  97.  It  only  in  aid  of  a  prosecution  or  de- 
is  immaterial,  in  such  cases,  that  the  fense  in  litigation  pending  or  con- 
complainant  has  no  interest  in  the  templated.  Fuller  v.  Hollander,  61 
property  to  be  inspected.  In  the  N.  J.  Eq.  648,  47  Atl.  646,  88  Am.  St. 
principal  case  it  was  held  that  a  bill  Rep.  456  (citing  Pom.  Eq.  Jur^ 
would  lie  to  compel  the  right  of  in-  §§    190-209). 


§    206  EQUITY    JURISPRUDENCE.  28G 

decide  the  whole  merits  of  the  controversy  upon  a  prelim- 
inary aiDplication.  It  is  well  settled,  therefore,  that  the 
matter  of  the  production  and  inspection  of  documents  de- 
pends upon  the  same  principles  and  doctrines  which  govern 
discovery  in  general.^ 

§  206.  It  follows  from  this  fact  that  the  production  of 
documents  rests  wholly  on  the  defendant's^  own  admis- 
sions, contained  either  in  his  answer  to  the  bill,  or  in  his 
answers  to  interrogatories,  or  in  his  affidavit.  If  his  an- 
swers or  his  affidavit  are  evasive  or  insufficient,  he  may 
be  called  upon  to  make  them  more  specific,  and  to  admit  or 
deny;  but  when  he  has  once  directly  denied  the  possession 
of  documents,  or  their  materiality  to  the  plaintiff's  case,  the 
court  will  not  compel  their  production.  The  truth  of  the 
defendant's  statements  cannot  be  contested,  either  by  his 
own  cross-examination,  or  by  means  of  any  contradictory 
evidence  offered  on  the  part  of  the  plaintiff.^  The  admis- 
sion authorizing  an  order  to  produce  must  cover  two  facts, 

§  205,  2  By  the  original  chancery  practice,  an  interrogatory  or  interroga- 
tories, more  or  less  specific  according  to  the  plaintiff's  choice,  are  inserted  in 
the  bill,  asking  the  defendant  whether  he  has  any  documents,  or  such  and  such 
particular  documents,  in  his  possession.  If  his  answer  admits  his  posses- 
sion of  material  documents,  an  order  is  made,  on  the  plaintiff's  motion,  for 
their  production,  so  that  they  may  be  inspected.  Under  the  more  recent 
practice,  the  defendant's  admissions  are  made  in  his  answer  to  interrogatories 
filed,  or  in  his  affidavit  made  in  reply  to  the  plaintiff's  motion. 

§  206,  1 1  say  the  defendant's  admission,  because  it  is  ordinarily  the  de- 
fendant who  is  called  upon  to  produce.  But  the  same  rule  applies  alike  to  the 
plaintiff  when  the  defendant  files  interrogatories  and  moves  for  a  disclosure 
and  production  by  the  plaintiff,  without  a  resort  to  a  cross-bill  for  a  dis- 
covery, as  is  permitted  by  the  modern  practice  in  England  and  in  many  of 
the  states. 

§  206,  2  Wright  v.  Pitt,  L.  R.  3  Ch.  809,  810,  per  Page  Wood,  L.  J.  "  Tlie 
general  rule  is,  that  the  party  seeking  discovery  of  documents  must  be  satisfied 
with  his  opponent's  affidavit  on  the  subject,  and  cannot  cross-examine  or  give 
evidence  contradicting  it":  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  656;  and 
see  Robbing  v.  Davis,  1  Blatch.  238.  There  is,  however,  one  exception  to 
this  rule.  Notwitlistanding  the  denials  of  the  defendant's  affidavit  that  he 
has  any  other  documents,  if  the  court  has  a  "reasonable  suspicion,"  arising 
from  other  admissions  of  the  affidavit  or  of  his  answer,  that  the  defendant 
must  have  otlier  documents  in  liis  possession,  it  may  compel  him  to  make 
a  furtlifr  iiflidavit  containing  more  8j)ecific  statements:  Saull  v.  Browne, 
L.  R.  17  Eq.  402;  Noel  v.  Noel,  1  De  Gex,  J.  &  S.  4(58;  for  the  exact  limita- 
tions of  this  exception,  sec  Wright  v.  Pitt,  L.  R.  3  Ch.  809,  810. 


287  THE    AUXILIAEY    JUIUSDICTION.  §    207 

—  the  possession  of  the  documeiits  and  their  materiality. 
Manual  possession  is  not  essential.  It  is  enough  if  the 
documents  are  either  in  the  actual  possession  of  the  de- 
fendant, or  are  under  his  control ;  that  is,  are  in  the  custody 
of  an  attorney,  agent,  or  other  third  person,  whose  custody 
of  them  the  defendant  can,  by  the  exercise  of  his  lawful 
powers,  control,  or  from  whom  he  can,  by  the  exercise  of 
such  powers,  obtain  the  possession  himself.  The  rule  is 
the  same  even  when  the  third  person  has  some  lien  on  the 
papers.^  But  if  the  documents  belong  wholly  or  in  part  to 
a  third  person  not  a  party  to  the  suit,  or  if  they  are  in  the 
joint  possession  of  the  defendant  and  of  some  third  person 
not  a  party  to  the  suit  by  virtue  of  the  latter 's  separate 
interest  or  right  in  them,  their  production  will  not  be  com- 
pelled without  the  consent  of  such  third  person.'* 

§  207.  Since  the  same  rules  as  to  materiality,  privilege, 
and  the  like,  which  govern  discovery,  apply  to  the  produc- 
tion of  documents,  it  follows  that  in  order  for  the  plaintiff 
to  be  able  to  compel  the  production  and  inspection  of  the 

3  Vale  V.  Oppert,  L.  R.  10  Ch.  340,  342  ;a  an  attorney  cannot  set  up  his 
lien  on  the  documents  as  against  a  party's  right  to  their  production;  and 
to  the  same  effect  is  Belaney  v.  Ffrench,  L.  R.  8  Ch.  918>  As  to  the 
production  of  documents  in  the  custody  of  third  persons,  etc.,  see  also  Ex 
parte  Shaw,  Jacob,  270;  Rodick  v.  Gandell,  10  Beav.  270;  Palmer  v.  Wright, 
10  Beav.  234;  North  v.  Huber,  7  Jur.,  N.  S.,  767;  In  re  Williams,  7  Jur.,  N.  S., 
323;  Liddell  v.  Norton,  23  L.  J.  Ch.  1G9;  Bethell  v.  Casson,  1  Hem.  &  M. 
806;  Morrice  v.  Swaby,  2  Beav.  500;  Lady  Beresford  v.  Driver,  14  Beav.  387; 
Robbins  v.  Davis,  1  Blatch.  238. 

4Hadley  v.  McDougal,  L.  R.  7  Ch.  312;  but  the  nature  and  extent  of 
Buch  third  person's  ownership  must  be  explained  when  this  excuse  is  set 
up:  Bovill  V.  Cowan,  L.  R.  5  Ch.  495;  as  to  the  non-production  of  docu- 
ments partly  belonging  to  third  person,  or  in  joint  possession  of  third  per- 
son, see  also  Warrick  v.  Queen's  College,  Oxford,  L.  R.  4  Eq.  254;  Vyse  v. 
Foster,  L.  R.  13  Eq.  602;  Edmonds  v.  Foley,  30  Beav.  282;  Robertson  v. 
Shewell,  15  Beav.  277;  Morrell  v.  Wootten,  13  Beav.  105;  Chant  v.  Brown, 
9  Hare,  790;  Ford  v.  Dolphin,  1  Drew.  222;  Penney  v.  Goode,  1  Drew.  474; 
Taylor  v.  Rundell,  Craig  &  P.  104;  Murray  v.  Walter,  Craig  &  P.  114.  But 
the  mere  fact  that  third  persons  are  interested  in  the  documents  is  not  an 
excuse  for  their  non-production:  Kettlewell  v.  Barstow,  L.  R.  7  Ch.  686; 
Hercy  v.  Ferrers,  4  Beav.  97 ;  Hopkinson  v.  Lord  Burghley,  L.  R.  2  Ch.  447. 

(a)  See  also  Lewis  v.  Powell,  (1897)  («»)  See  also  In  re  Hawkes,   (1898) 

1  Ch.  679.  2  Ch.  1,  reviewing  the  cases. 


%    207  EQUI-TY   JURISPRUDENCE.  288 

documents  admitted  to  be  in  the  defendant's  possession, 
their  materiality  to  the  plaintiff's  case  must  also  be  ad- 
mitted by  the  defendant.  If,  therefore,  the  defendant,  hav- 
ing admitted  certain  documents  to  be  in  his  possession,  or 
having  furnished  a  list  of  them,  definitely  denies  that  they 
are,  or  that  any  portion  or  provision  of  them  is,  material 
to  or  relates  to  the  plaintiff's  case,  he  is  freed  from  the  obli- 
gation of  producing  them.^  As  has  already  been  explained, 
the  ground  upon  which  the  plaintiff's  right  to  the  produc- 
tion of  documents,  as  well  as  to  any  other  discovery,  must 
rest  is,  that  they  relate  to  and  are  material  to  his  own  case, 
or  to  the  relief  which  is  demanded  in  his  suit;  he  has  no 
right  to  a  discovery  of  the  defendant's  evidence,  nor  to  the 
production  or  inspection  of  papers  connected  alone  with  the 
•defendant's  title.  If,  however,  the  documents  are  material 
to  his  own  case  or  to  the  relief  he  demands,  the  fact  that 
they  may  also  be  evidence  for  defense,  or  may  tend  to  sup- 
port the  defendant's  title  or  contention,  does  not  prevent 
"the  plaintiff  from  compelling  their  production.^  ^  In  apply- 
ing this  principle  to  a  variety  of  circumstances,  several 
special  rules  have  been  established  by  the  decisions  which 
are  found  in  the  foot-note.^ 

1  But,  under  the  circumstances  described,  the  defendant's  statement  on 
oath  that  he  believes  the  documents  contain  nothing  relating  to  the  plain- 
tiff's case,  is  not  enough;  he  must  distinctly  and  definitely  deny  the  fact; 
Atty.-Gen.  v.  Corp'n  of  London,  2  Macn.  &  G.  247 ;  as  examples  of  the  rule 
stated  in  the  text,  and  of  its  various  applications,  see  Minet  v.  Morgan, 
L.  R.  8  Ch.  361,  per  Lord  Selborne;  Kettlewell  v.  Barstovv,  L.  R.  7  Ch.  68G; 
Patch  V.  Ward,  L.  R.  1  Eq.  436,  439.a 

2  See  ante,  §§  198,  201,  202. 

3  A  defendant  is  not,  in  general,  required  to  produce  his  ottm  title  deeds, 
which  are  evidence  only  of  his  own  title;  and  therefore,  in  suits  against  a 
mortgagee  to  redeem,  or  other  suits  against  him  to  reach  the  land,  he  is 
not  bound  to  produce  the  title  deeds  which  have  been  delivered  to  him,  until 
the  entire  mortgage  debt,  interest  and  costs,  have  been  paid  in  full:  Chi- 
chester V.  Marquis  of  Donegal,  L.  R.  5  Ch.  497;   Minet  v.  Morgan,  L.  R.   11 

(a)   The   defendant's   denial   of   the  documents:      Roberts    v.    Oppenhcim, 

materiality  of  the  documents  will  not  L.  R.  26  Ch.  Div.  724. 
be   taken   as   conclusive   if   the   court  (b)    See    also    Dock   v.    Dock,    180 

can  see  from  the  nature  of  the  case  Pa.  St.   14,  57  Am.  St.  Rep.  617,  36 

or   of  the   documents   tliat  the   party  Atl.  411. 
has   misunderstood   the   effect   of   the 


289  THE    AUXILIABY   JUKISDICTION.  §    208 

§  208.  IV.  When,  how  Far,  and  for  Whom  may  the  An- 
swer in  the  Discovery  Suit  be  Used  as  Evidence.* —  If  the  suit 
is  one  for  discovery  alone  without  relief,  in  aid  of  some 
action  or  proceeding  in  a  court  of  law,  and  the  answer  is 
used  as  evidence  on  the  trial  of  such  action,  its  use  is  en- 
tirely governed  by  the  legal  rules  applicable  to  such  species 
of  testimony.  It  is,  in  fact,  the  admissions  of  one  party  to 
the  controversy,  proved  by  his  adversary,  differing  from 
ordinary  admissions  only  by  its  more  formal  and  elaborate 
character.  It  follows,  therefore,  that  if  the  party  obtaining 
the  discovery  reads  any  portion  of  the  answer  in  evidence, 
the  whole  of  it  must  be  read  on  the  demand  of  the  one  who 
made  it,  so  that  the  jury  may  be  possessed  of  all  his  state- 
ments and  explanation  or  qualification  of  his  admissions/ 

Eq.  284;  Patch  v.  Ward,  L.  R.  1  Eq.  436;  Thompson  v,  Engle,  4  N.  J.  Eq. 
271;  Cullison  v.  Bossom,  1  Md.  Ch.  95.  This  general  rule  is  subject  to  an 
exception  growing  out  of  the  doctrine  as  to  discovery  being  material  to  the 
plaintiff's  contention;  viz.,  if  a  prima  facie  case  is  made  out  by  the  plaintiff 
impeaching  the  validity  of  defendant's  title  deed  on  ground  of  fraud  and  the 
like,  or  that  the  defendant's  deed  contains  some  clause  or  provision  operating 
in  favor  of  the  plaintiff's  claim,  in  such  cases  a  production  of  the  deed  will 
be  compelled,  for  it  then  becomes  evidence  material  to  the  plaintiff's  case: 
Republic  of  Costa  Rica  v.  Erlanger,  L.  R.  19  Eq.  33,  44,  45,  per  Malins,  V.  C; 
Beckford  v.  Wildman,  16  Ves.  438;  Balch  v.  Symcs,  Turn,  &  R.  87 ;  Bass- 
ford  "v.  Blakesley,  6  Beav.  131,  133;  Kennedy  v.  Green,  6  Sim.  6;  Latimer  v. 
Neate,  11  Bligh,  112,  4  Clark  &  F.  470;  Follet  v.  Jefferyes,  1  Sim.,  N.  S.,  1; 
Freeman  v.  Butler,  33  Beav.  289;  Crisp  v.  Platel,  8  Beav.  62;  Cullison  v. 
Bossom,  1  Md.  Ch.  195.  A  mortgagee  ia,  however,  always  required  to  produce 
the  mortgage  itself  under  which  he  holds,  and  suffer  it  to  be  inspected  by  the 
mortgagor :  Patch  v.  Ward,  L.  R.  1  Eq.  436,  439.  If  a  defendant  is  a  public 
officer  and  has  official  custody  of  public  documents,  he  will  not  be  required  to 
produce  them  by  way  of  answer:  Salmon  v.  Claggett,  3  Bland,  145.  It  was 
held  in  Boyd  v.  Petrie,  L.  R.  3  Ch.  818,  that  an  application  by  either  party 
before  trial,  to  have  a  specified  document  in  the  hands  of  his  adversary  pro- 
duced and  submitted  to  the  inspection  of  intended  witnesses  of  the  party 
applying,  so  that  they  may  be  able  to  testify  concerning  it  at  the  trial,  is 
a  very  special  application,  and  must  be  supported  by  an  affidavit  of  very 
special  circumstances  showing  the  necessity  of  such  a  course. 

iFant  v.  Miller,  17  Gratt.  187;  Hart  v.  Freeman,  42  Ala.  567,  Where 
the  American  courts  have  assumed  the  jurisdiction  to  go  on  and  give  final 

(a)  Cited  in  District  of  Columbia  to  the  bill  of  discovery  are  not  conclu- 
T.  Robinson,  180  U.  S.  92,  21  Sup.  Ct,  sive  against  the  other  party  at  law. 
283,   to   tlie   effect   that   the   answers 

Vol.  I  — 19 


§    209  EQUITY   JURISPRUDENCE.  290 

Very  different  and  special  rules  have  been  established  as 
to  the  effect  and  use  of  the  defendant's  answer  for  purposes 
of  evidence,  both  on  behalf  of  the  complainant  and  of  him- 
self, in  equity  suits  for  relief  as  well  as  for  a  discovery. 
As  the  answer  in  ordinary  equity  suits  may  always  consist 
of  two  parts, —  that  which  is  purely  matter  of  pleading,  con- 
sisting of  denials  of  the  plaintiff's  allegations,  and  affirma- 
tive averments  of  the  defendant's  case;  and  that  which  is 
strictly  matter  of  evidence,  consisting  of  answers  to  the 
interrogatories  contained  in  the  plaintiff's  bill, —  it  is  plain 
that  this  subject  belongs  wholly  to  the  system  of  procedure, 
the  pleading  and  the  evidence,  prevailing  in  courts  of 
equity,  and  is  not  embraced  within  the  scope  of  the  present 
treatise.^ 

§  209.  Modern  Statutory  Methods. —  In  the  foregoing 
paragraphs  I  have  collected  the  rules  which  have  been 
settled  by  courts  possessing  the  equitable  jurisdiction,  and 
acting  in  conformity  with  the  principles  and  methods  of 
the  chancery  system  of  procedure,  both  concerning  the  use 
of  **  suits  for  discovery  "  alone,  or  properly  so  called,  and 
concerning  the  subject-matter  of  the  discovery  of  facts,  and 
of  the  production  of  documents,  whether  such  discovery 
and  production  are  obtained  in  "  suits  for  discovery  '^ 
proper,  or  in  ordinary  equitable  suits  for  relief  as  well  as 

relief  on  the  ground  of  the  application  to  them  for  discovery,  although  the 
relief  is  legal  in  its  nature,  and  could  be  adequately  obtained  at  law,  the 
same  rule  as  to  using  the  answer  in  evidence  has  been  applied:  Shotwell 
V.  Smith,  20  N.  J.  Eq.  79;  Holmes  v.  Holmes,  36  Vt.  525;  Lyons  v.  Miller, 
6  Gratt.  439,  52  Am.  Dec.  129. 

2  See,  on  this  subject,  Adams's  Eq.  20-22;  Bartlett  v.  Gillard,  3  Russ. 
149,  15C;  Freeman  v.  Tatham,  5  Hare,  329;  East  v.  East,  5  Hare,  343; 
East  India  Co.  v.  Donald,  9  Ves.  275;  Savage  v.  Brocksopp,  18  Ves.  335; 
MoMahon  v.  Burchell,  2  Phill.  Ch.  127;  Glenn  v.  Randall,  2  Md.  Ch.  220;  Fanl 
V.  Miller,  17  Gratt.  187;  Swift  v.  Dean,  G  Johns.  523;  Clason  v.  Morris, 
10  Johns.  524;  Stafford  v.  Bryan,  1  Paige,  239;  Page  v.  Page,  8  N.  H. 
187;  Daniel  v.  Mitchell,  1  Story,  173;  Hughes  v.  Blake,  6  Wheat.  453;  Union 
Bank  v.  Geary,  5  Pet.  99;  Chance  v.  Teeple,  4  N".  J.  Eq.  173;  Myers  v, 
Kinzie,  26  111.  36;  White  v.  Hampton,  10  Iowa,  238;  Hart  v.  Freeman,  42 
Ala.  567;  Eaton's  Appeal,  66  Pa.  St.  483;  as  to  the  effect  of  the  plaintiff's 
waiver  of  an  answer  under  oath:  Sweet  v.  Parker,  22  N.  J.  Eq.  453;  Tom- 
linson  V.  Lindley,  2  Ind.  509. 


291  THE    AUXILIARY   JURISDICTION.  §    209" 

discovery.  It  has  also  been  shown  that  the  same  doctrines 
in  relation  to  the  subject-matter  of  the  discovery  and  the 
production  of  documents  are  still  in  force  under  the  pro- 
cedure now  prevailing  in  England  and  in  some  of  our  states^, 
which  has  abolished  the  old  modes  of  discovery,  either  by 
separate  suit  or  by  the  defendant's  answer  in  suits  for  re- 
lief, and  has  substituted  in  its  place  the  use  of  interroga- 
tories filed  in  the  progress  of  a  suit,  by  which  either  party 
may  probe  the  conscience  of  his  adversary,  and  obtain  evi- 
dence from  him  as  an  ordinary  proceeding  in  the  litiga- 
tion.^ In  many  of  the  states,  however,  where  a  discovery,, 
as  an  ordinary  step  in  the  cause,  is  not  provided  for  other- 
wise than  by  the  oral  examination  of  the  opposite  party  as 
a  witness  at  the  trial  itself,  there  are  statutes  which  author- 
ize and  regulate  certain  special  applications  to  the  court 
by  motion  or  petition  for  a  preliminary  examination  of  the- 
opposite  party,  in  order  to  obtain  facts  necessary  to  the^ 
proper  framing  of  the  cause  of  action  or  defense  in  the 
applicant's  pleading,  or  to  compel  the  preliminary  produc- 
tion and  inspection  of  books  and  documents,  or  to  accom- 
plish some  other  similar  special  purpose.  As  these  col- 
lateral proceedings  are  wholly  regulated  by  the  statutes 
which  create  them,  their  discussion  belongs  to  books  pro- 
fessedly treating  of  practice,  and  does  not  come  within  the 
scope  of  the  present  work,  except  so  far  as  the  matters  of 
which  a  discovery  may  be  compelled,  and  those  which  are 
privileged  from  disclosure,  are  embraced  within  the  doc- 
trines hereinbefore  explained.  I  have,  however,  placed  in 
the  foot-note  some  of  the  more  important  decisions  inter- 
preting these  statutory  provisions.^  * 

1  It  is  veiy  remarkable  that  this  simple,  direct,  and  efficacious  mode  of 
obtaining  evidence  to  be  used  on  the  trial  has  not  been  adopted  as  an  ordi- 
nary proceeding  in  the  progress  of  a  litigation  in  all  the  states  where  the 
reformed  system  of  procedure  prevails. 

2  The  following  are  some  of  the  most  important  and  recent  decisions,  which 

(a)  In  Ex  parte  Boyd,  105  U.  S.  tion  of  a  debtor  upon  proceedings 
647,  it  was  held  that  the  statutes  of  supplemental  to  execution  was  not 
New  York   authorizing  the  examina-       a    mere    statutory    interference    with 


§    210  EQUITY   JUKISPRUDENCB.  292 

EXAMINATION   OF   WITNESSES. 

§  210.  This  Jurisdiction  Described. —  While  the  first 
hranch  of  the  auxiliary  jurisdiction  deals  with  the  matter 
of  obtaining  evidence  from  the  parties  themselves,  the 
second  branch  comprises  the  methods  of  examining  wit- 
nesses who  are  not  parties,  and  of  preserving  their  evidence 
for  future  use  at  the  trial  of  actions  at  law,  or  at  the  hear- 
ing of  suits  in  equity.  This  branch  of  the  auxiliary  juris- 
diction was  doubtless  established  in  aid  of  proceedings  at 
law,  although  its  methods  may  also  be  used  in  suits  strictly 
equitable.  Where  a  right  now  exists,  which  is  likely  to  be 
disputed  or  contested  at  some  future  time,  but  no  action  can 
yet  be  brought  for  the  purpose  of  establishing  it,  and  there 
is  danger  that  all  the  witnesses  will  have  died,  and  the  evi- 
dence by  which  alone  it  can  be  supported  will  have  dis- 
appeared before  that  time  arrives  at  which  an  action  can 
be  brought,  the  common  law  furnished  no  means  for  taking 

will  put  the  reader  upon  the  track  of  other  and  earlier  authorities.  It  will 
be  seen  that  upon  all  matters  affecting  the  merits,  what  disclosures  may  be 
compelled,  materiality,  privilege,  etc.,  the  courts  uniformly  hold  that  these 
statutory  proceedings  take  the  place  of  the  equity  suit  for  a  discovery,  and 
are  governed  by  substantially  the  same  rules.  1.  Proceeding  for  the  ex- 
amination of  the  opposite  party:  Glenny  v.  Stedwell,  51  How.  Pr.  321. 
<The  plaintiff  in  a  pending  action  may  examine  the  adverse  party  before 
service  of  the  complaint,  and  for  the  purpose  of  obtaining  facts  on  which  to 
frame  a  complaint.  The  proceeding  is  intended  to  take  the  place  of  the 
equity  suit  for  a  discovery,  and  may  be  used  whenever  and  for  whatever  pur- 
pose a  discovery  could  be  made.)  Plaintiff  may  examine  the  opposite  party 
before  issue  is  joined:  Hadley  v.  Fowler,  12  Aljb.  Pr.,  N.  S.,  244;  Havemeyer 
V.  Ingersoll,  12  Abb.  Pr.,  N.  S.,  301 ;  McVickar  v.  Greenleaf,  1  Abb.  Pr.,  N.  S., 
452,  7  Rob.  (N.  Y.)  G57,  overruling  Bell  v.  Richmond,  4  Abb.  Pr.,  N.  S.,  44, 
50  Barb.  571;  as  to  what  defendant  may  be  compelled  to  answer,  see  Dambman 
V.  Butterfield,  4  Tliomp.  &  C.  542;  as  to  disclosure  tending  to  render  defend- 
ant liable  for  penalties,  etc.,  see  United  States  v.  Hughes,  12  Blatch.  553. 

the  equitable  remedies   for  a  discov-  district    court    shall    be    entitled  to 

ery,  and  that  consequently  they  were  similar   remedies   upon   the   same,  by 

available    in    the    federal    courts,    by  execution  or  otlierwise,  to  reach  the 

virtue  of  section   910  of  the  Revised  property  of  the  judgment  debtor,  as 

Statutes    which    provides    that    "  the  are   now   provided    in   like   causes  by 

party    recovering    judgment    in    any  the  laws  of  the  state." 
•common-law  cause  in  any  circuit  or 


293  THE    AUXILIARY    JURISDICTION.  §    210 

the  testimony  of  the  witnesses  in  anticipation.  To  prevent 
such  a  failure  of  justice,  the  auxiliary  jurisdiction  of  equity 
contrived  the  suit  for  perpetuating  the  testimony  of  wit- 
nesses under  such  circumstances.  Again,  where  a  suit  at 
law  has  actually  been  commenced,  but  has  not  reached  the 
time  for  trial,  and  there  is  danger  lest  the  evidence  of  cer- 
tain material  witnesses  should  be  lost,  from  their  extreme 
age,  or  from  their  being  sick,  or  from  their  being  about  to 
leave  the  country,  and  also  where  in  such  a  suit  mate- 
rial witnesses  are  actually  in  a  foreign  country,  so  that  their 
attendance  cannot  be  compelled,  nor  their  testimony  taken 
upon  deposition  by  any  modes  which  the  common  law  had 
furnished,  the  auxiliary  jurisdiction  supplied  the  defect  by 
means  of  a  suit  to  take  the  testimony  of  the  witnesses  de 
bene  esse  in  the  one  case,  and  a  suit  to  take  the  testimony 
of  the  witnesses  in  foreign  countries  upon  a  commission 
issued  out  of  chancery  in  the  other  case.^    As  these  three 

2.  Compelling  production  and  inspection  of  documents:  Merchants'  Nat. 
Bank  v.  State  Nat.  Bank,  3  Cliff.  201;  United  States  v.  Hughes,  12  Blatch. 
653;  Livingston  v.  Curtis,  12  Hun,  121,  54  How.  Pr.  370,  overruling  Piatt  v. 
Piatt,  11  Abb.  Pr.,  N.  S.,  110;  Cutter  v.  Pool,  54  How.  Pr.  311;  New  Eng- 
land Iron  Co.  V,  New  York  Loan,  etc.,  Co.,  55  How.  Pr.  351;  Mott  v.  Con- 
Bumers'  Ice  Co.,  2  Abb.  N.  C.  143,  52  How.  Pr.  148,  244;  Morgan  v.  Morgan, 
16  Abb.  Pr.,  N.  S.,  291;  Central  Nat.  Bank  v.  White,  37  N.  Y.  Super.  Ct. 
297;  Whitwortb  v.  Erie  R.  R.,  37  N.  Y.  Super.  Ct.  437;  Holtz  v.  Schmidt, 
34  N.  Y.  Super.  Ct.  28;  Rice  v.  Ehele,  55  N.  Y.  518;  Thompson  v.  Erie  R.  R., 
9  Abb.  Pr.,  N.  S.,  212,  No.  2,  9  Abb.  Pr.,  N.  S.,  230;  Williams  Mower,  etc., 
Co.  V.  Raynor,  38  Wis.  132;  Noonan  v.  Orton,  28  Wis.  38G;  Whitman  v. 
Weller,  39  Ind.  515;  O'Connor  v.  Tack,  2  Brewst.  407  (a  full  and  instructive 
case)  ;  Esbach  v.  Lightner,  31  Md.  528.  3.  What  facts,  etc.,  must  be  shotcn 
in  the  application;  what  the  order  must  contain:  Cutter  v.  Pool,  54  How.  Pr. 
311;  New  England  Iron  Co.  v.  New  York  Loan,  etc.,  Co.,  55  How.  Pr.  351; 
Mott  V.  Consimiers'  Ice  Co.,  52  How.  Pr.  148;  Central  Crosstown  R.  R.  v. 
Twenty-third  St.  R.  R.,  53  How.  Pr.  45;  Central  Nat.  Bank  v.  White,  37 
N.  Y.  Super.  Ct.  297;  Whitworth  v.  Erie  R.  R.,  37  N.  Y.  Super.  Ct.  437; 
Holtz  V.  Schmidt,  34  N.  Y.  Super.  Ct.  28;  Rice  v.  Ehele,  55  N.  Y.  518; 
Hauseman  v.  Sterling,  61  Barb.  347;  Phelps  v.  Piatt,  54  Barb.  557;  Thompson 
V.  Erie  R.  R.,  9  Abb.  Pr.,  N.  S.,  212,  230;  Williams  Mower,  etc.,  Co.  v, 
Raynor,  38  Wis.  132;  Whitman  v.  Weller,  39  Ind.  515;  O'Connor  v.  Tack, 
2  Brewst.  407;  Esbach  v.  Lightner,  31  Md.  528.  4.  Other  points  of  practice: 
Noonan  v.  Orton,  28  Wis.  386;  Whitman  v.  Weller,  39  Ind.  615. 
1  Jeremy's  Eq.  J\ir.,  b.  2,  chap.  2,  pp.  270-280. 


§    211  EQUITY   JUEISPRUDENCE.  294 

equitable  proceedings  were  very  cumbrous,  and  as  they 
have  been  practically  superseded,  even  if  not  expressly 
abolished,  both  in  England  and  in  most  of  the  states,  by 
more  simple,  direct,  and  efficacious  statutory  methods,  a 
very  brief  description  of  them  will  suffice. 

§  211.  I.  Suit  to  Perpetuate  Testimony." — A  suit  to  per- 
petuate testimony  could  only  be  maintained  where  the 
plaintiff  had  at  the  time  some  right  vested  or  contingent, 
to  which  the  testimony  would  relate;  but  such  right  could 
not  then  be  investigated,  established,  or  defended  by  an 
action  at  law.  As  the  foundation  of  the  suit,  the  plaintiff 
in  it,  not  yet  being  in  possession  of  the  property  in  question, 
might  have  a  future  interest,  to  take  effect  only  upon  the 
happening  of  some  future  and  perhaps  contingent  event; 
or  he  might  have  an  immediate  present  interest,  being  in 
possession  of  the  property,  and  his  possession  not  yet  actu- 
ally disturbed,  but  threatened  with  disturbance  or  contest, 
by  the  defendant,  at  some  future  time;  in  either  of  which 
casfes  he  could  immediately  bring  no  action  at  law  to  main- 
tain or  defend  his  right.^    As  to  the  nature  of  the  plain- 

1  Jeremy's  E<j.  Jur.  277;  Dursley  v.  Fitzhardinge,  6  Ves.  251;  Angell  v. 
Angell,  1  Sim.  &  St.  83.  Mr.  Justice  Story,  in  his  treatise  on  Equity  Juris- 
prudence, section  1513,  in  comparing  "bills  to  take  testimony  de  bene  esse" 
with  "bills  to  perpetuate  testimony,"  uses  the  following  language:  "There 
is  this  broad  distinction  between  bills  of  this  sort  [to  examine  de  bene  esse] 
and  bills  to  perpetuate  testimony,  that  the  latter  are  and  can  be  brought  by 
persons  only  who  are  in  possession  under  their  title,  and  who  cannot  sue  at 
law.  But  bills  to  take  testimony  de  bene  esse  may  be  brought,  not  only  by 
persons  in  possession,  but  by  persons  who  are  out  of  possession,  in  aid  of  the 
trial  at  law";  citing,  among  others,  Jeremy's  Eq.  Jur.  277,  278.  This  state- 
ment of  the  learned  commentator,  restricting  bills  to  perpetuate  testimony 
to  persons  who  are  in  possession  under  their  title,  is  a  grave  error,  and  is  in 
direct  variance  with  the  authorities  cited  in  its  support,  and  with  the  gen- 
■eral  doctrine  as  laid  down  by  text-writers  and  courts.  Mr.  Jeremy,  at 
the  page  cited  ( p.  277 ) ,  says :  "  From  these  observations  it  will  appear  that 
the  proceedings  for  the  examination  of  witnesses  de  bene  esse,  and  in  per- 
petuation of  testimony,  are  very  distinct.  The  court,  it  will  be  seen,  gives 
aid  of  the  former  kind,  .  .  .  and  of  the  latter  kind  where  the  party  ap- 
plying for  it  is  in  possession,  but  anticipates  an  aggression  upon  his  enjoy- 
enent  at  a  future  time  when  his  adversary  shall  have  gained  sufficient  advan- 

(a)   Cited  with  approval  in  Winter  v.  Elmore,  88  Ala.  555,  7  South.  250. 


295  THE    AUXILIARY   JURISDICTION.  §    211 

tiff's  interest,  it  might  be  in  real  or  in  personal  property, 
or  in  mere  personal  demands,  and  might  be  such  that  the 
testimony  sought  would  be  used  in  support  of  a  cause  of 
action  or  of  a  defense  at  law.^  But  as  the  law  stood  inde- 
pendent of  statute,  the  plaintiff  must  have  an  interest 
recognized  and  maintainable  by  the  law,  although  it  might 
be  very  small,  remote,  and  contingent.^  Therefore  if  the 
plaintiff  has  only  a  possibility  or  an  expectancy,  no  matter 
how  probable  and  actually  valuable,  he  could  not  maintain 
the  suit;  as  in  case  of  an  heir  at  law  during  the  life  of  his 
ancestor.*  In  England  the  right  of  the  plaintiff  to  main- 
tain the  proceeding  with  respect  to  the  nature  of  his  interest 
has  been  enlarged  by  statute;  which  embraces  those  who 
have  mere  possibilities,  as  well  as  those  who  have  actual 
interests.^  If  the  right,  interest,  or  claim  could  possibly 
be  made  the  subject  of  an  immediate  judicial  investigation 
in  an  action  brought  by  the  party  who  commences  a  suit  to 
perpetuate  testimony,  such  suit  would  for  that  reason  be 
dismissed ;  but  if  the  party  cannot  possibly  bring  the  matter 
before  a  court  so  that  his  right  or  claim  may  be  adjudicated 
upon  at  once,  the  equity  suit  to  perpetuate  the  testimony 
can  be  maintained.  The  reason  given  by  the  cases  is,  that 
the  only  evidence  in  support  of  the  plaintiff's  rights  might 

tage  by  delay,  or  is  out  of  possession,  and  has,  at  present,  no  right  of  action, 
but  designs  himself,  when  such  a  right  shall  accrue,  to  commence  proceed- 
ings at  law."    See  also,  to  the  same  effect,  Adams's  Eq.  23. 

2  Earl  of  Suflfolk  v.  Green,  1  Atk.  450. 

3Dursley  v.  Fitzhardinge,  6  Ves.  251;  Allan  v.  Allan,  15  Yes.  134-136; 
Earl  of  Belfast  v.  Chichester,  2  Jacob  &  W.  451,  452;  Townshend's  Peerage 
Cases,  10  Clark  &  F.  289. 

4  Even  though  the  ancestor  was  a  lunatic.  See  cases  in  last  note ;  also 
Sackvill  V.  Aylesworth,  1  Vern,  105,  106.  And  see  In  re  Tayleur,  L.  R,  6 
Ch.  416. 

6  Stat.  5  &  6  Vict.,  chap.  69,  which  enacts  that  "  any  person  who  would, 
under  the  circumstances  alleged  by  him  to  exist,  become  entitled,  upon  the 
happening  of  any  future  event,  to  any  honor,  title,  dignity,  or  office,  or  to 
any  interest  or  estate  in  any  property,  real  or  personal,  the  right  or  claim  to 
which  cannot  by  him  be  brought  to  trial  before  the  happening  of  such  event, 
fehall  be  entitled  to  file  a  bill  to  perpetuate  any  testimony  which  may  be 
material  for  establishing  such  claim  or  right."  See  Campbell  v.  Earl  of 
Dalhousie,  L,  R.  1  H.  L,  S.  462. 


§    212  EQUITY   JURISPRUDENCE.  29& 

be  lost  by  the  death  of  his  witnesses ;  and  the  adverse  party 
might  delay  to  move  in  the  matter  for  the  very  purpose  of 
obtaining  the  advantage  resulting  from  such  an  event." ' 
The  mode  of  examining  the  witnesses  is  by  deposition  simi- 
lar to  that  pursued  in  other  equity  suits.  The  cause  does 
not  proceed  any  further  than  the  examination  of  the  wit- 
nesses ;  the  suit  is  then  really  at  an  end.  The  only  further 
step  is  the  ' '  publication  of  the  evidence, ' '  as  it  is  called  in 
the  chancery  practice,  by  which  the  parties  have  access  ta 
and  become  entitled  to  use  the  testimony.  This  ''  publica- 
tion ' '  is  made  by  an  order  of  the  court ;  but  such  an  order 
cannot  be  obtained  except  for  the  purpose  of  using  the 
testimony  in  some  action,  nor  can  it  be  obtained,  as  a  gen- 
eral rule,  even  for  that  purpose  until  after  the  death  of  the 
witnesses  whose  depositions  are  sought  to  be  used.  This 
latter  rule  can  only  be  evaded  on  very  special  grounds,  by 
showing  that  although  the  witnesses  are  still  living  their 
examination  in  the  action  is  morally  impossible.'^ 

§  212.  Statutory  Modes.— As  this  particular  instance  of 
the  auxiliary  jurisdiction  of  equity  is  wholly  based  upon 
the  mode  of  taking  the  testimony  of  witnesses  by  written 
depositions,  which  prevailed  in  the  original  chancery  prac- 
tice, it  would  seem  to  follow  as  a  necessary  result  that  the 
equitable  suit  to  perpetuate  testimony  has  been  abrogated 
in  all  those  American  states  where  the  reformed  procedure 
has  been  adopted  by  which  the  method  of  taking  testimony 
of  witnesses  in  the  form  of  written  depositions,  as  well  in 
equitable  suits  as  in  legal  actions,  is  abolished.  This  man- 
ner of  obtaining  the  evidence  bjing  no  longer  the  character- 
istic of  any  class  of  suits  in  those  states,  the  ancient  exer- 

6Angell  V.  Angell,  1  Sim.  &  St.  83;  Ellice  v.  Roupell,  32  Beav.  299;  Earl 
Spencer  v.  Peek,  L.  R.  3  Eq.  415. 

7  Angell  V.  Angell,  1  Sim.  &  St.  83;  Morrison  v,  Arnold,  19  Ves.  670; 
Barnsdalc  v.  Lowe,  2  Iluss.  &  M.  142.  As  to  the  practice,  see  further,  Att'y- 
Gen.  V.  llay,  2  Hare,  518;  Beavan  v.  Carpenter,  11  Sim.  22;  Wright  v.  Tat- 
ham,  2  Sim.  459.  it  has  boon  held  that  the  testimony  thus  perpetuated  may 
be  used  in  the  court  of  a  foreign  country:     Morris  v.  Z^Iorris,  2  Phill.  Ch.  205. 

(a)  See  also  West  v.  Lord  Sackville,  (1903)  2  Ch.  378. 


297  THE    AUXILIARY    JURISDICTION.  §    213^ 

cise  of  the  auxiliary  jurisdiction  for  preserving  evidence 
by  a  suit  would  seem  to  be  impossible.  In  the  other  states, 
also,  which  have  not  adopted  the  reformed  procedure,  the 
special  statutory  proceedings  for  the  perpetuation  of  testi- 
mony have  virtually  displaced  and  rendered  obsolete  the 
equitable  suit  for  that  purpose.* 

§  213.  II.  Suits  to  Take  the  Testimony  of  Witnesses  de 
Bene  Esse,  and  of  Witnesses  in  a  Foreign  Country." —  A  suit 
to  take  testimony  de  bene  esse  is  maintained  in  aid  of  a 
pending  action  at  law  to  examine  a  witness  who  is  very 
aged,  or  who  is  sick,  or  who  is  about  to  depart  from  the 
country,  or  a  person  who  is  the  only  witness  to  a  material 
fact  in  the  cause,  although  neither  aged  nor  sick;  the  ground 
of  such  proceeding  being  the  evident  danger  lest  the  evi- 
dence should  be  entirely  lost  to  the  party  by  a  delay.^ 
There  is  a  very  clear  line  of  distinction  between  this  suit 
and  that  to  perpetuate  testimony.  While  the  latter  could 
only  be  brought  by  a  party  who  had  no  present  immediate 
cause  of  action,  this  suit  to  take  testimony  de  bene  esse  can 
only  be  maintained  by  one  who  has  an  existing  cause  of 
action  or  defense,  and  while  the  action  of  law  is  pending.^ 
After  the  depositions  are  completely  taken,  they  cannot  be 
read  as  evidence  at  the  trial,  unless  it  is  shown  that  the- 

1  Jeremy's  Eq.  Jur,  271-273;   Angell  v.  Angell,   1   Sim.  &  St.   83,  92,  93; 

Fitzliugh  V.  Lee,  Amb.  65;  Rowe  v.  ,  13  Ves.  261;   Cholmondelay  v. 

Orford,  4  Browii  Ch.  157;  Shirley  v.  Earl  Ferrers,  3  P.  Wms.  77;  Pearson 
V.  Ward,  1  Cox,  177;  Prichard  v.  Gee,  5  Madd.  364.  Such  an  examination 
may  also  be  had,  under  like  circumstances,  in  a  pending  equity  suit,  before 
it  is  at  issue,  so  that  the  examination  can  take  place  in  the  ordinary  manner. 
See  Frere  v.  Green,  19  Ves.  320;  Cann  v.  Cann,  1  P.  Wms.  567;  Hope  v. 
Hope,  3  Beav.  317;  Mcintosh  v.  Great  West  R'y,  1  Hare,  328. 

2  Angell  V.  Angell,  1  Sim.  &  St.  83;  but  Phillips  v.  Carew,  1  P.  Wms.  117, 
holds  that  the  action  at  law  need  not  yet  be  begun;  that  it  may  be  only  con- 
templated. This  ruling  was  sharply  criticised  and  condemned  by  Sir  John 
Leach,  in  Angell  v.  Angell,  1  Sim.  &  St.  83,  and  its  authority  shaken. 

§  212,    (a)    In  Winter  v.  Elmore,  reach  the  testimony  of  witnesses  only, 

88  Ala.  555,  7  South.  250,  it  is  held  and  not  of  parties, 
that  the  statutory  proceedings  which  §  213,   (a)   Cited  with  approval  in 

take  the  place  of  suits  to  perpetuate  Winter    v.    Elmore,    88    Ala.    555,    7 

testimony,  and  to  take  testimony  de  South.  250. 
bene  esse,  are  intended,  like  them,  to 


§§    214,    215  EQUITY   JURISPRUDENCE.  298 

witness  is  dead,  or  is  beyond  the  jurisdiction,  or  is  too  phys- 
ically infirm,  or  is  otherwise  incapable  of  attending  to  tes- 
tify in  person.^ 

§  214.  The  suit  to  examine  witnesses  in  a  foreign  coun- 
try upon  a  commission  issued  for  that  purpose,  in  aid  of  a 
pending  action  at  law,  is  founded  upon  the  original  lack  of 
any  power  in  the  common-law  courts  to  grant  such  commis- 
sions. The  name  indicates  the  nature  and  extent  of  the 
proceeding.  It  is  in  fact  a  branch  or  modification  of  the 
suit  to  take  testimony  de  bene  esse,  and  is  governed  by  the 
rules  applicable  to  that  suit,  except  the  witnesses  in  foreign 
countries  to  be  examined  need  not  be  aged  nor  sick.  The 
inability  to  reach  them,  or  to  compel  their  personal  attend- 
ance by  any  legal  process,  is  the  ground  upon  which  the 
jurisdiction  rests.^ 

§  215.  Statutory  Modes. —  Both  of  these  modes  of  taking 
testimony  through  an  equitable  suit  have  become  entirely 
obsolete  throughout  the  United  States.  Ample  powers  were 
long  ago  conferred  by  statute  upon  the  various  courts  of 
law,  to  permit  and  direct  the  testimony  of  aged,  or  infirm, 
or  other  witnesses  to  be  taken  preliminary  to  the  trial  in 
any  pending  proceeding,  under  all  the  circumstances  which 
would  have  authorized  a  suit  to  take  the  testimony  de  hem.e 
esse,  and  also  to  permit  and  direct  the  issuing  of  commis- 
sions to  other  states  and  to  foreign  countries,  for  the  pur- 
pose of  taking  the  testimony  of  absent  witnesses,  under  like 
circumstances.  These  statutory  methods,  being  more  sim- 
ple, speedy,  and  efficacious,  have  wholly  superseded  this 
branch  of  the  auxiliary  jurisdiction  of  equity. 

3  ILirris  v.  Cotterell,  3  Mer.  680;  Gason  v.  Wordsworth,  2  Ves.  Sr.  330; 
Dew  V.  Clark,  1  Sim.  &  St.  108;  Webster  v.  Pawson,  Dick.  540. 

iGrinnell  v.  Cobbold,  4  Sim.  54G;  Moodalay  v.  Morton,  1  Brown  Ch.  469; 
An<,'cll  V.  Anf^cll,  1  Sim.  &  St.  83,  93;  Mendizabel  v.  Machado,  2  Sim.  &  St, 
483;  Tliorpe  v.  Macaulej,  5  Mudd.  218,  231;  Devis  v.  TmubulL  6  Madd.  232. 


299  INADEQUACY   OF   LEGAL   BEMEDIES.  §    216 


CHAPTER    SECOISTD. 

GENERAL    RULES    FOR    THE    GOVERNMENT    OF 
THE    JURISDICTION. 


SECTION   L 

INADEQUACY  OF  LEGAL  REMEDIES. 

AXALTSIS. 

t  216.  Questions  to  be  examined  stated. 

S  217.  Inadequacy  of  legal  remedies  is  the  very  foundation  of  the  con- 
current jurisdiction. 

I  218.  Is  only  the  occasion  for  the  rightful  exercise  of  the  exclusive 
jurisdiction. 

{  219.  Operation  of  the  principle  upon  the  exclusive  jurisdiction;  does 
not  affect  the  first  branch,  which  deals  with  equitable  estates 
and  interests. 
f  §  220, 221.  Is  confined   to  the   second   branch,   which   deals  with   equitable 
remedies. 

i  222.  Summary  of  the  equity  jurisdiction  as   aflfected  by  the  inade- 
quacy of  remedies. 

§  216.  Questions  Stated. —  Having  thus  described  the 
three  main  divisions  into  which  the  equitable  jurisdiction  of 
courts  clothed  with  chancery  powers  is  separated,  it  be- 
comes important  to  examine  with  more  fullness  some  of 
the  general  rules  which  govern  this  jurisdiction,  and  the 
courts  in  its  exercise.  It  is  especially  important  that  we 
should  determine  with  exactness  the  true  operation  and 
effect  of  the  principle,  so  constantly  quoted,  and  even  em- 
bodied in  statutory  legislation,  that  the  equitable  jurisdic- 
tion can  only  be  resorted  to  when  the  legal  remedies  are 
insufficient  and  inadequate.*  How  far  and  under  what  cir- 
cumstances is  this  principle  the  foundation  of  the  equitable 
jurisdiction,  the  essential  fact  upon  which  its  very  existence 

(a)  See  also  ante,  §§  132,  133. 


§§    217,    218  EQUITY   JURISPRUDENCE.  300" 

depends  ?  and  liow  far  is  it  simply  a  rule  —  altliougli  a 
fundamental  rule  —  regulating  and  controlling  the  proper 
exercise  of  that  jurisdiction?  I  purpose,  in  the  first  place, 
to  give  the  answer  to  these  questions. 

§  217.  Inadequacy  of  Legal  Remedies  the  Foundation  of  the 
Concurrent  Jurisdiction. —  The  insufficiency  and  inadequacy 
of  the  legal  remedies  to  meet  the  requirements  of  justice 
under  any  given  state  of  circumstances,  where  the  primary 
rights,  interests,  or  estates  of  the  litigant  parties  to  be  en- 
forced or  maintained  are  wholly  legal,  constitute  the  founda- 
tion of  the  concurrent  jurisdiction  of  equity  to  interfere  un- 
der those  circumstances,  they  are  the  essential  facts  upon 
which  the  existence  of  that  jurisdiction  depends.  Since  the 
primary  rights,  interests,  or  estates  of  the  litigant  parties 
are  legal,  those  parties  are,  of  course,  entitled  to  go  into  a 
court  of  law  and  obtain  the  remedies  which  it  can  furnish. 
But  it  is  solely  because  these  legal  remedies  are,  under  the 
assumed  circumstances,  inadequate  to  do  complete  justice, 
by  reason  of  the  imperfection  of  the  judicial  methods 
adopted  by  the  law  courts,  that  the  courts  of  equity  have 
also  the  power  to  interfere  and  to  award,  in  pursuance  of 
their  own  judicial  methods,  remedies  which  are  of  the  same 
general  kind  as  those  granted  by  the  courts  of  law  to  the 
same  litigant  parties  under  the  same  circumstances.  This 
is  the  essential  element  of  the  concurrent  jurisdiction;  its 
very  existence  thus  depends  upon  the  inadequacy  of  the 
legal  remedies  given  to  the  litigant  parties,  under  the  same 
circumstances  upon  which  the  equity  tribunal  bases  its  ad- 
judication. This  proposition  has  been  sufficiently  explained 
in  the  preceding  sections.* 

§  2]8.  Is  the  Occasion  only  of  the  Exclusive  Jurisdiction. — 
There  is,  however,  a  radical  difference  between  the  opera- 
tion of  this  inadequacy  of  legal  remedies  upon  the  concur- 
rent equitable  jurisdiction  and  upon  the  exclusive  jurisdic- 
tion, although  the  direct  results  of  the  operation  in  both 

(a)  See  §§  139,  173,  17G,  180. 


301  ESTADEQUACY    OF    LEGAL    REMEDIES.  §    218 

cases  may  be  apparently  the  same ;  and  it  is  tlie  neglect  to 
obsei-ve  this  distinction  which  has  tended  more  than  any- 
thing else  to  involve  the  whole  subject  in  confusion.  The 
exclusive  equitable  jurisdiction,  or  the  power  of  the  courts 
to  adjudicate  upon  the  subject-matters  coming  within  that 
jurisdiction,  exists  independently  of  the  adequacy  or  inade- 
quacy of  the  legal  remedies  obtainable  under  the  circum- 
stances of  any  particular  case.  It  exists,  as  has  been  shown, 
in  a  preceding  section,  from  one  or  the  other  of  two  facts : 
either,  first,  because  the  primary  rights,  interests,  or  estates 
of  the  complaining  party,  which  are  to  be  enforced  or  pro- 
tected, are  equitable  in  their  nature,  and  are  therefore  not 
recognized  by  the  law  so  as  to  be  cognizable  in  the  law 
•court;  or  second,  because  the  remedies  asked  by  the  com- 
plaining party  are  such  as  are  administered  alone  by  courts 
-of  equity,  and  are  therefore  beyond  the  competency  of  the 
courts  of  law  to  grant.  Whenever  either  of  these  two  facts 
is  involved  in  the  circumstances  of  a  judicial  controversy, 
the  jurisdiction  of  equity  over  the  svibject-matter  of  such 
controversy  is,  and  from  the  nature  of  the  case  must  be, 
exclusive.  But  because  the  equitable  jurisdiction  in  certain 
kinds  of  circumstances  is  exclusive,  it  does  not  follow  that 
the  jurisdiction  can  be  properly  exercised  in  every  indi- 
vidual case  involving  or  depending  upon  such  circum- 
stances. The  power  of  a  tribunal  to  adjudicate  upon  a  class 
of  facts  to  which  a  certain  individual  case  belongs  is  not 
identical  with  the  due  and  proper  exercise  of  that  power, 
according  to  the  established  rules  of  jurisprudence,  by  a 
judgment  maintaining  the  alleged  right  and  conferring  the 
-demanded  remedy.  This  proposition  is  self-evident,  is  a 
mere  commonplace  truism;  and  yet  it  has  been  ignored  in 
much  that  has  been  said  concerning  the  equitable  jurisdic- 
tion. The  distinction  thus  stated  clearly  shows  the  manner 
in  which  the  inadequacy  of  legal  remedies  under  a  given 
condition  of  circumstances  operates  upon  and  affects  the 
exclusive  equitable  jurisdiction.  Such  inadequacy  simply 
furnishes  the  occasion  upon  which  much  of  the  exclusive 


§    219  EQUITY    JURISPRUDENCE.  302 

jurisdiction  may  properly  be  resorted  to ;  it  is  the  rule,  Id 
many  instances,  for  the  proper  use  of  the  exclusive  juris- 
diction in  accordance  with  the  settled  doctrines  of  equity 
jurisprudence;  that  jurisdiction  can  only  be  duly  and  regu- 
larly exercised,  in  many  instances,  by  an  affirmative  adjudi- 
cation upon  the  alleged  rights  and  an  award  of  equitable 
remedies,  when  the  legal  remedies  obtainable  under  the 
same  facts  are  inadequate  to  promote  the  ends  of  justice.^  • 
§  219.  Operation  of  the  Principle  upon  the  Exclusive  Juris- 
diction.—  The  foregoing  statement  is  so  general  and  vague 
as  to  be  of  little  practical  benefit;  it  is  necessary,  there- 
fore, to  define  the  principle  more  exactly,  and  to  ascertain, 
if  possible,  what  portions  of  the  exclusive  jurisdiction  thus 
depend  for  their  due  and  proper  exercise  upon  the  inade- 
quacy of  legal  remedies  and  the  insufficiency  of  legal  meth- 
ods. The  exclusive  jurisdiction  consists,  as  has  been  shown, 
of  two  distinct  branches,  namely:  1.  Where  the  primary 
rights,  interests,  or  estates  of  the  complaining  parties  are 
wholly  equitable;  and  2.  Where  the  primary  rights,  inter- 
ests, or  estates  are  legal,  but  the  remedies  sought  and  ob- 
tained are  wholly  equitable.  The  principle  that  the  inade- 
quacy of  legal  remedies  furnishes  the  occasion  for  a  re- 
sort to  the  equitable  jurisdiction  and  the  rule  for  its  proper 
exercise  does  not  extend  to  the  first  branch  or  division  of 
the  exclusive  jurisdiction.  The  exercise  of  the  power,  in 
cases  belonging  to  this  first  branch,  to  adjudicate  upon, 
maintain,  enforce,  or  protect  purely  equitable  primary 
rights,  interests,  or  estates  does  not  at  all  depend  upon  any 
insufficiency  or  inadequacy  of  legal  methods  and  remedies, 
but  solely  upon  the  fact  that  these  primary  rights,  interests, 
or  estates  are  wholly  equitable,  are  not  recognized  by  the 
law  nor  cognizable  by  the  courts  of  law,  and  there  is  there- 
fore no  other  mode  of  maintaining  and  enforcing  them  ex- 

1  Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291;  Southampton 
Dock  Co.  V.  Southampton,  etc.,  Board,  L.  R,  11  Eq.  254;  Rathbone  v.  War- 
ren, 10  JohnB.  587 ;   Kin<T  v.  Baldwin,  2  Johns.  Ch.  554. 

(a)   See  also  ante,  §§  137,  138,  139,  note.  173. 


303  INADEQUACY    OF    LEGAL    REMEDIES.  §    219 

cept  by  the  courts  of  equity.  Wherever  the  complaining 
party  has  purely  equitable  primary  rights,  interests,  or  es- 
tates according  to  the  doctrines  and  principles  of  the  equity 
jurisprudence,  courts  having  equitable  powers  do  and  must 
exercise  their  exclusive  jurisdiction  over  the  case,  entirely 
irrespective  of  the  adequacy  or  inadequacy  of  legal  reme- 
dies, for  the  plain  and  sufficient  reason  that  the  litigant 
party  cannot  possibly  obtain  any  legal  remedies  under 
the  circumstances;  the  courts  of  law  do  not  recognize 
his  rights,  and  cannot  adjudicate  upon  nor  protect 
his  interests  and  estates.  One  or  two  examples  will 
illustrate  the  correctness  and  the  generality  of  this  state- 
ment. In  the  case  of  a  trust  created  in  lands,  the  estate 
of  the  cestui  que  trust  is  purely  an  equitable  one,  of  which 
law  courts  refuse  to  take  cognizance.  He  is  therefore  al- 
ways entitled  to  the  aid  of  a  court  of  equity  in  establishirig, 
maintaining,  and  enforcing  his  estate  according  to  the 
nature  of  the  trust  and  the  doctrines  of  equity  jurispru- 
dence which  regulate  it,  and  to  obtain  such  remedies  as  the 
circumstances  may  require ;  and  the  question  never  is  asked, 
nor  could  be  asked,  whether  the  remedies  given  him  by  a 
court  of  law  are  or  are  not  adequate,  since  all  legal  reme- 
dies are  to  him  impossible.*  Again,  in  case  of  an  equitable 
assignment, —  as,  for  example,  the  equitable  assignment  of 
a  particular  fund  or  a  portion  thereof  by  means  of  an  unac- 
cepted order  on  the  depositary, —  the  interest  of  the  as- 
signee in  the  fund  is  a  purely  equitable  ownership,  and  he 
is  always  entitled  to  maintain  an  action  in  a  court  of  equity, 
although  the  actual  relief  which  he  obtains  is  legal  in  its 
nature,  being  simply  a  recovery  of  money.  The  proj)er  ex- 
ercise  of   the   equitable   jurisdiction  under   such  circum-i 

1  It  will  be  understood,  of  course,  that  I  am  speaking  of  the  equity  juris- 
diction, unaffected  by  any  particular  statutes.  There  may  be  legislation  in 
the  various  states  similar  to  the  statute  of  Georgia  already  referred  to  [§  137, 
note],  which  permits  the  holder  of  a  "complete  equity"  in  land,  e.  g.,  the 
vendee  under  a  land  contract  who  has  paid  the  purchase  price,  to  maintain 
the  legal  action  of  ejectment,  in  order  to  recover  possession  of  the  land. 


§    219  EQUITY   JUEISPRUDENCE.  304 

stances  cannot  dejDend  upon  any  inadequacy  of  legal  reme- 
dies, since  a  court  of  law  would  not  acknowledge  any  right 
or  interest  of  the  assignee.^  A  well-settled  doctrine  con- 
cerning the  interference  with  actions  at  law  by  injunction 
furnishes  a  further  illustration.  If  the  defendant  in  an 
action  at  law  has  an  equitable  interest  or  estate  in  the  prop- 
erty, or  an  equitable  right  in  the  subject-matter,  which,  ao- 
cording  to  the  established  rules  of  equity  jurisprudence, 
should  prevent  a  recovery  against  him,  but  which,  being 
purely  equitable,  cannot  be  set  up  as  a  defense  in  the  pro- 
ceeding before  a  court  of  law,  he  can  invoke  the  exclusive 
jurisdiction  of  a  court  of  equity,  without  regard  to  any  legal 
defenses  which  he  may  have,  and  can  procure  the  action  at 
law  to  be  restrained,  and  his  own  equitable  interest  to  be 
established  and  enforced  by  means  of  appropriate  equi- 
table reliefs,  because  such  equitable  interest  is  not  recog- 
nized by  the  law  nor  cognizable  by  the  legal  tribunals.'  Such 
illustrations  might  be  indefinitely  multiplied.  They  are, 
however,  sufficient  to  show  that,  so  far  as  the  exclusive 
jurisdiction  of  equity  is  concerned  with  equitable  estates, 
interests,  and  primary  rights  alone  of  the  complaining 
party,  and  therefore  belongs  to  the  first  branch,  its  exer- 
cise does  not  depend  upon  any  consideration  of  the  ade- 

2Rodick  V.  Gandell,  1  De  Gex,  M.  &  G.  763;  Ex  parte  Imbert,  1  De  Gex 
&  J.  152;  Mandeville  v.  Welch,  5  Wheat.  277,  286;  Gibson  v.  Finley,  4  Md. 
Ch.  75;  Wheatley  v.  Strobe,  12  Cal.  92,  98,  73  Am.  Dec.  522;  Shaver  v.  West. 
U.  T.  Co.,  57  N.  Y.  459,  404;  and  see  cases  cited  ante,  under  §   169. 

3  Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291;  Pyke  v.  North- 
wood,  1  Beav.  152;  Newlands  v.  Paynter,  4  Mylne  &  C.  408;  Langton  v.  Hor- 
ton,  3  Beav.  4G4,  1  Hare,  549;  East  India  Co.  v.  Vincent,  2  Atk.  83;  Stiles 
V.  Cowper,  3  Atk.  692;  Jackson  v.  Cator,  5  Ves.  688;  Pilling  v.  Armitage,  12 
Yes.  85;  Young  v.  Reynolds,  4  Md.  375;  Ross  v.  Harper,  99  Mass.  175;  Fan- 
ning V.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283;  Edwards  v.  Varick,  1  HofT. 
Ch.  382,  11  Paige,  290,  5  Donio,  664,  679;  Hibbard  v.  Eastman,  47  N.  H.  507, 
03  Am.  Doc.  467;  Miller  v.  Gaskins,  1  Smedcs  &,  M.  Ch.  524;  Smith  v.  Walker, 
8  Smedcs  &  M.  131;  Wilson  v.  Leigh,  4  Ired.  Eq.  97;  Roes  v.  Borrington,  2 
Vcs.  510;  Williams  v.  Price,  1  Sim.  &  St.  581;  Capel  v.  Butler,  2  Sim.  &  St. 
457;  Hayes  v.  Ward,  4  Johns.  Ch.  12.3,  8  Am.  Doc.  554;  Viole  v.  Iloag,  24  Vt. 
46;  Gallagher  v.  Roberta,  1  Wash.  C.  C.  150,  328;  Boardman  v.  Florez,  37  Mo. 
£59. 


305  INADEQUACY    OF    LEGAL   REMEDIES.  §    22C 

quacy  or  inadequacy  of  legal  remedies,  but  depends  upon 
and  is  controlled  by  the  doctrines  and  rules  of  the  equity 
jurisprudence.  Such  jurisdiction  both  exists  and  is  exer- 
cised because  the  equitable  estates,  interests,  or  rights  of 
the  litigant  party  exist,  and  can  be  established,  protected, 
and  enforced  by  no  other  judicial  means  and  instrumen- 
talities. 

§  220.  It  is  otherwise  with  the  second  branch  of  the  ex- 
clusive jurisdiction,  as  above  described,  where  the  primary 
rights,  interests,  or  estates  of  the  complaining  party  are 
legal  in  their  nature,  but  the  remedies  sought  by  him  are  en- 
tirely equitable.  Where  a  person  has  a  legal  primary  right, 
he  is  not  always,  and  as  a  matter  of  course,  entitled  to  go 
into  a  court  of  equity,  set  its  jurisdiction  in  motion,  and  ob- 
tain the  equitable  remedies  appropriate  to  maintain  or  pro- 
tect his  right.  Since  his  estates,  interests,  or  primary  rights 
are  legal,  he  can  always,  in  case  of  their  infringement  or  vio- 
lation, demand  and  recover  the  legal  remedies  which  are 
conferred  by  courts  of  law  under  the  circumstances. 
Whether  he  may  also  demand  and  recover  the  proper  equi- 
table remedies  depends  upon  other  considerations.  Al- 
though the  jurisdiction  of  courts  of  equity  to  grant  these 
equitable  remedies  in  all  such  cases  is  exclusive,  because 
courts  of  law  (except  as  authorized  by  modern  statutes) 
have  no  power  to  grant  them,  yet  the  courts  of  equity  will 
not,  in  every  instance,  exercise  their  jurisdiction.  The 
proper  exercise  of  the  jurisdiction  in  every  case  of  this  kind 
—  but  not  the  jurisdiction  itself  —  depends  upon  the  ques- 
tion whether  the  legal  remedies  which  the  party  can  obtain 
from  courts  of  law  upon  the  same  facts  and  circumstances 
are  inadequate  to  meet  the  ends  of  justice, —  insufiScient  to 
confer  upon  him  all  the  relief  to  which  he  is  justly  en- 
titled. If  the  legal  remedies  administered  by  the  judicial 
machinery  and  methods  adopted  in  the  law  courts  are  fully 
adequate  to  establish,  protect,  and  enforce  the  party's  legal 
estates,  interests,  and  rights,  a  court  of  equity  will  not  in- 
terfere in  his  behalf  with  the  purely  remedial  branch  of  its 
Vol.  I  — 20 


§    221  EQUITY   JUEISPBUDENCE.  306 

exclusive  jurisdiction;  if  the  legal  remedies,  either  from 
their  own  essential  nature  or  from  the  imperfection  of  the 
legal  procedure,  are  inadequate,  then  a  court  of  equity  will 
interpose,  and  do  complete  justice  by  granting  the  appropri- 
ate equitable  remedies  which  it  alone  is  competent  to  confer. 
Examples  taken  from  the  decided  cases  in  which  the  various 
kinds  of  equitable  remedies  have  been  decreed  would  clearly 
show  that  the  dicta  of  judges  and  the  rules  laid  down  by 
courts  concerning  the  general  dependence  of  the  equitable 
jurisdiction  upon  the  inadequacy  of  legal  remedies,  however 
conflicting  they  may  appear  to  be,  are  all  embraced  within 
and  rendered  harmonious  and  consistent  by  the  foregoing 
principle;  they  all  become  particular  applications  and  illus- 
trations of  this  principle.*  A  few  such  instances  must  suffice 
for  explanation. 

§  221.  The  well-settled  rules  concerning  the  restraint  of 
actions  at  law  by  means  of  injunction  furnish  a  great  variety 
of  examples.  When  the  defendant  in  an  action  at  law  has 
some  equitable  interest  or  right  which,  being  established  acr- 
cording  to  the  doctrines  of  equity  jurisprudence,  would  pre- 
vent the  recovery  at  law  against  him,  then  a  court  of  equity 
will,  as  a  matter  of  course,  take  cognizance  of  the  matter, 
entertain  a  suit  on  his  behalf,  and  enjoin  the  action  at  law, 

1 1  do  not  mean  that  in  their  dicta  and  statements  of  rules  concerning  the 
equitable  jurisdiction,  the  judges  have  always  consciously  recognized  this 
principle,  and  have  expressly  drawn  the  distinction  formulated  in  the  text, 
viz.,  that  while  the  inadequacy  of  legal  remedies  is  the  fact  upon  which 
the  concurrent  jurisdiction  exists,  it  simply  furnishes  the  occasion  and  rule 
for  the  exercise  of  the  exclusive  jurisdiction,  and  furthermore,  that  the 
application  of  this  latter  doctrine,  by  which  the  actual  exercise  of  the  exclu- 
sive jurisdiction  is  made  to  depend  upon  the  inadequacy  of  legal  remedies, 
is  confined  to  one  branch  alone  of  that  jurisdiction,  the  branch  which  is  con- 
cerned with  the  granting  of  purely  equitable  remedies  in  cases  where  the 
primary  rights  of  the  complaining  party  are  legal,  and  does  not  extend  to 
the  other  branch,  which  deals  with  cases  where  the  primary  rights  of  the 
party  are  wholly  equitable.  But  I  claim  that  the  principle  formulated 
and  distinctions  thus  stated  in  the  text  are  implicitly  and  necessarily 
contained  in  and  established  by  the  judicial  dicta  and  rules,  and  produce 
an  orderly  and  consiHtont  systom  out  of  materials  which,  on  the  surface,  ap- 
pear to  be  unarrangL'd  and  conflicting. 


307  llNl ADEQUACY    OF   LEGAL.   BEMEDiEo.  o"    ^-^l 

in  order  that  it  may,  by  the  proper  equitable  remedies, 
maintain,  protect,  or  enforce  the  equitable  right  held  by  such 
party.^  But,  on  the  other  hand,  when  the  right  or  interest 
on  which  the  defendant  in  the  action  at  law  relies  is  legal 
in  its  nature,  so  that  it  may  be  set  up  by  way  of  defense  in 
such  action,  and  may  be  adjudicated  upon  by  the  court  of 
law,  and  the  defendant  is  prevented  or  hindered  from  thus 
presenting  or  availing  himself  of  his  legal  defense  by  means 
of  some  collateral  or  extrinsic  matter,  such  as  fraud,  duress, 
mistake,  ignorance,  negligence,  and  the  like,  or  the  defense- 
itself,  although  legal,  involves  some  matter  of  equitable  cog- 
nizance, such  as  fraud,  mistake,  or  accident, —  whether  a. 
court  of  equity  will  then  inteii)ose  in  aid  of  the  party,  will 
take  cognizance  of  the  controversy,  and  enjoin  the  action  at 
law,  in  order  that  the  legal  right  of  the  defendant  therein 
may  be  rendered  effective  so  as  to  prevent  a  recovery 
against  him,  always  depends  upon  the  question  whether  the 
legal  remedies  which  the  litigant  party,  under  the  circum- 
stances of  the  case,  has  obtained  from  the  court  of  law,  or 
might  have  obtained  by  the  use  of  due  diligence,  are  inade- 
quate to  attain  the  ends  of  justice ;  in  other  words,  whether 
the  refusal  of  a  court  of  equity  to  interpose  would,  from 
the  insufficiency  of  the  legal  relief,  or  the  imperfection  of 
the  legal  procedure,  work  a  substantial  injustice  to  the  liti- 
gant party  under  all  the  facts  of  this  case.^    In  both  these 

1  See  ante,  §  219. 

2  Earl  of  Oxford's  Case,  1  Ch.  Rep,  1,  2  Lead.  Cas.  Eq.  1291;  Harrison  v. 
Nettleship,  2  Mylne  &  K.  423;  Hardinge  v.  Webster,  1  Drew.  &  S.  101; 
Simpson  v.  Lord  Howden,  3  Mylne  &  C.  108,  per  Lord  Cottenliam;  Curtesa 
V.  Smalridge,  1  Eq.  Cas.  Abr.  377,  pi.  1 ;  Stephenson  v.  Wilson,  2  Vern.  325 ; 
Blackball  v.  Combs,  2  P.  Wras.  70;  Prothcroe  v.  Forman,  2  Swanst.  227, 
233;  Holworthy  v.  Mortlock,  1  Cox,  141;  Stevens  v.  Praed,  2  Yes.  Jr. 
519;  Ware  v.  Horwood,  14  Ves.  31;  Holmes  v.  Stateler,  57  111.  209;  Foster 
V.  Wood,  6  Johns.  Ch.  89;  Marine  Ins.  Co.  v.  Hodgson,  7  Cranch,  332;  Hen. 
drickson  v.  Hinckley,  17  How.  445;  Danaher  v.  Prentiss,  22  Wis.  311; 
Forsythe  v.  McCreight,  10  Rich.  Eq.  308;  Wilsey  v.  Maynard,  21  Iowa, 
107;  Day  v.  Cummings,  19  Vt.  496;  Vaughn  v.  Johnson,  9  N.  J.  Eq.  173; 
Harrison  v.  Davenport,  2  Barb.  Ch.  77;  Perrine  v.  Striker,  7  Paige,  598; 
Powell  V.  Watson,  6  Ired.  Eq.  94;  Hood  v.  N.  R.  R.  Co.,  23  Conn.  609; 
Clapp  v.  Ely,  10  N.  J.  Eq.  178. 


§    221  EQUITY   JURISPRUDENCE.  308 

classes  of  cases  the  equitable  jurisdiction  is  exclusive,  since 
a  court  of  equity  alone  has  power  to  grant  the  remedy  of 
injunction ;  in  the  first,  the  jurisdiction  is  always  exercised 
€is  a  matter  of  right,  in  the  second,  its  exercise  is  supple- 
mentary to  the  judicial  methods  existing  at  the  law,  and  is 
•called  into  operation  only  when  those  methods  fail  to  give 
complete  relief.^  Additional  examples  may  be  found  in  the 
■established  rules  concerning  the  use  of  the  injunction.  The 
jurisdiction  to  restrain  torts  to  property,  real  or  personal, 
nuisances,  trespasses,  and  the  like,  by  injunction,  is  exclu- 
•sive,  although  the  estate  of  the  complaining  party  which 
is  interfered  with,  and  which  he  seeks  to  protect,  is  legal, 
-and  he  is  entitled  to  the  legal  remedy  of  compensatory  dam- 
ages, yet  the  preventive  remedy  which  he  demands  for  the 
protection  of  his  property  is  wholly  equitable,  and  can  only 
be  administered  by  courts  of  equity.  The  general  doctrine 
is  well  established  that  this  exclusive  jurisdiction  will  not 
be  exercised  in  any  case  for  the  purpose  of  enjoining  tres- 
passes and  other  tortious  acts  to  property,  at  the  suit  of  one 
having  the  legal  estate,  unless  the  legal  remedy  —  compen- 
satory damages  —  is  inadequate,  under  the  circumstance  of 
the  case,  to  confer  complete  relief  upon  the  injured  party.* 

3  It  is  for  this  reason  that  some  writers  have  classified  all  cases  in 
which  the  exercise  of  the  jurisdiction  depends  upon  the  inadequacy  of  legal 
remedies  under  the  head  of  the  "  concurrent  "  jurisdiction. 

4  Garth  v.  Cotton,  1  Ves.  Sr.  524,  546,  1  Dick.  183,  3  Atk.  751,  1  Lead. 
Cas.  Eq.  955,  987-1027;  Jesus  College  v.  Bloome,  3  Atk.  262,  Amb.  54;  Van 
Winkle  v.  Curtis,  3  K  J.  Eq.  422;  Weigcl  v.  Walsh,  45  Mo.  560;  Mus- 
selman  v.  Marquis,  1  Bush,  463,  89  Am.  Dec.  637;  Hicks  v.  Compton,  18 
-Cal.  206;  Gause  v.  Perkins,  3  Jones  Eq.  177,  69  Am.  Dec.  728;  Livingston 
V.  Livingston,  6  Johns.  Ch.  497,  499,  500,  10  Am.  Dec.  353,  and  cases  cited; 
Hawley  v.  Clowes,  2  Johns.  Ch.  122;  De  Veney  v.  Gallagher,  20  N.  J.  Eq. 
33;  Coe  v.  Lake  Mfg.  Co.,  37  N.  H.  254,  and  cases  cited;  Burnham  v.  Kemp- 
ton,  44  N.  II.  78;  Gallagher  v.  Fayette  Co.  R.  B.,  38  Pa.  St.  102;  Johnson  v. 
Conn.  Bank,  21  Conn.  148,  157;  Hardesty  v.  Taft,  23  Md.  512,  530,  87  Am. 
Dec.  584;  Mechanics'  and  Traders'  Bank  v.  De  Bolt,  1  Ohio  St.  591 ;  Eastman  v. 
Amoskeag  Mfg.  Co.,  47  N.  H.  71,  78;  Watson  v.  Sutherland,  5  Wall,  74,  78; 
Parker  v.  Winnipiseogoe  Co.,  2  Black,  545,  550,  and  cases  cited;  Creely  v. 
Bay  State  Brick  Co.,  103  Mass.  514;  Morgan  v.  Palmer,  48  N.  H.  336; 
Jcnks  V.  Williams,  115  Mass.  217;  Walker  v.  Zorn,  60  Ga.  370;  Ziegler 
V.  I!(!aslcy,  44  Ga.  56. 


309  INADEQUACY    OF    LEGAL    KEMEDIES.  §    221 

Another  illustration  may  be  found  in  the  doctrines  con- 
cerning the  remedy  of  specific  performance  of  contracts. 
The  jurisdiction  to  enforce  performance  of  contracts  spe- 
cifically is  exclusive*  for  the  remedy  itself  is  most  distinc- 
tively equitable  and  completely  beyond  the  judicial  methods 
of  the  law  courts ;  yet  the  complaining  party  has  a  legal  pri- 
mary right  created  by  the  contract,  and  upon  its  violation 
is  always  entitled  to  the  relief  afforded  by  an  action  at  law,, 
—  compensatory  damages, —  even  though  such  damages  are 
only  nominal.  The  doctrine  is  fundamental  that  this  juris- 
diction will  be  called  into  operation,  and  the  specific  per- 
formance will  be  decreed  only  in  those  classes  of  cases  in 
which,  according  to  the  views  taken  by  the  equity  court,  the 
legal  remedy  of  compensatory  damages  is,  from  its  essential 
nature,  insufficient,  and  fails  to  do  complete  justice  between 
the  litigant  parties."^  It  is  true  that  in  applying  this  doc- 
trine the  courts  of  equity  have  established  the  further  rule 
that  in  general  the  legal  remedy  of  damages  is  inadequate 
in  all  agreements  for  the  sale  or  letting  of  land,  or  of  any 
estate  therein;  and  therefore  in  such  class  of  contracts  the 
jurisdiction  is  always  exercised,  and  a  specific  performance 
granted,  unless  prevented  by  other  and  independent  equi- 
table considerations  which  directly  affect  the  remedial  right 
of  the  complaining  party ;  but  this  result  does  not  interfere 
with  nor  modify  the  principle  which  is  under  discussion.®  * 

8  Pomeroy  on  Specific  Performance  of  Contracts,   §§   9-27. 

6  Various  and  sometimes  very  insufficient  reasons  have  been  given  by 
judges  for  the  foregoing  rule,  that  the  legal  remedy  is  always  to  be  regarded 
as  inadequate  in  contracts  relating  to  real  estate,  while  on  the  other  hand 
it  is  generally  to  be  regarded  as  adequate  in  contracts  relating  to  personal 
property.  The  distinction  stated  in  the  text,  and  which  I  am  illustratingj^ 
may  perhaps  furnish  a  complete  explanation.  In  an  agreement  for  the 
sale  of  land,  the  vendee,  in  addition  to  his  legal  primary  right,  also  obtains,. 
in  pursuance  of  the  equitable  doctrine  of  conversion,  an  equitable  estate  in- 
the  land, —  an  estate  which  equity  regards  as  the  real  beneficial  ownership,, 
burdened  simply  or  encumbered  witli  the  lien  of  the  unpaid  purchase  price. 
Being  thus  the  holder  of  the  equitable  estate  in  the  subject-matter,  the  equi- 

(a)  The  text  is  quoted  in  Maryland  Atl.  424,  and  cited  in  Christiansen 
Clay   Co.   V.   Simpers,    96   Md.    1,   53       v.  Aldrich  (Mont.),  76  Pac.  1001. 


^    221  EQUITY   JURISPRUDENCE.  310 

Another  illustration  may  be  drawn  from  the  doctrines  con- 
cerning the  cancellation  or  surrender  of  written  instru- 
ments on  the  ground  of  some  actual  fraud  either  in  their 
•original  execution  or  in  their  subsequent  use.  Such  remedy 
is  entirely  equitable ;  but  when  the  injured  party  has  a  legal 
estate  in  the  subject-matter  or  a  legal  primary  right,  he 
may  set  up  the  actual  fraud  as  a  defense  in  an  action  at 
law,  if  his  legal  title  is  thereby  attacked,  or  a  recovery  is 
thereby  sought  against  him  on  the  instrument.  Whether, 
under  these  circumstances,  and  at  the  suit  of  a  party  hold- 
ing a  legal  interest  or  a  legal  primary  right,  the  exclusive 
jurisdiction  will  be  exercised  for  the  pui-pose  of  protect- 
ing his  estate  or  maintaining  his  right,  by  decreeing  a  can- 
cellation or  a  surrender  of  the  instrument  thus  affected  by 
fraud,  depends  upon  the  question  whether  the  legal  reme- 
dies, either  affirmative  or  defensive,  open  to  the  party,  are 
^inadequate  to  promote  the  ends  of  justice,  and  to  afford  him 
■complete  relief.'^  ^     In  the  same  manner,  where  a  bill  of 

table  owner  of  the  land,  he  is,  according  to  the  doctrine  stated  in  the  text, 
-entitled  as  a  matter  of  course  to  the  aid  of  a  court  of  equity  in  protecting 
:such  estate  and  in  clothing  him  with  the  legal  title  by  means  of  a  convey- 
ance from  the  vendor.  The  exercise  of  the  jurisdiction  does  not  then  de- 
pend, as  it  does  when  the  jurisdiction  is  merely  to  confer  equitable  relief, 
upon  the  inadequacy  of  the  legal  remedy,  but  is  rather  a  matter  of  equi- 
table right  in  the  vendee.  The  same  rule  is  applied  in  cases  of  similar 
contracts  to  the  vendor,  partly  because  he  acquires  an  equitable  owner- 
ship of  the  purchase  price,  and  partly  because  of  the  doctrine  of  mutuality. 
In  the  contracts  relating  to  personal  property,  the  equitable  principle  of 
conversion  is  not  applied  with  the  same  strictness  and  with  all  the  con- 
Bequences  as  in  contracts  relating  to  real  estate.  Tlie  further  rule,  that 
the  granting  a  specific  performance  in  all  cases  depends  upon  certain  equi- 
table grounds  afTecting  the  remedial  right  of  the  plaintiff,  or,  to  use  the 
common  but  misleading  expression,  that  it  depends  upon  the  judicial  dis- 
cretion of  the  court,  plainly  does  not  interfere  with  this  view.  See  Pome- 
roy  on  Specific  Performance  of  Contracts,  §§  35-43. 

7  Hamilton  v.  Cummings,  1  Johns.  Ch.  517;  Bushnell  v.  Hartford,  4  Johns. 
301;  Dale  v.  Roosevelt,  5  Johns.  174;  Mitler  v.  Mitler,  18  N.  J.  Eq.  270,  19 
N.  J.  Eq.  257,  457;  Town  of  Glastonbury  v.  McDonald,  44  Vt.  453;  Bissell 
V.  Beckwith,  33  Conn.  357;  Hall  v.  Whiston,  5  Allen,  126;  Martin  v. 
■Graves,   5   Allen,   001;    Sherman   v.   Fitch,   98   Mass.   69;    Ferguson   v.   Fisk, 

(b)  The  text  is  citcil  to  this  ef-  30  Atl.  98;  Andrews  v.  Frierson,  134 
/feet  in  Druon  v.  Sullivan,  GO  Vt.  009,       Ala.  C2G,  33  South.  6. 


311  INADEQUACY    OF    LEGAL   REMEDIES.  §    221 

exchange,  promissory  note,  or  otlier  negotiable  security  has 
been  obtained  by  fraud,  conversion,  or  other  like  manner 
which  would  create  a  valid  defense  at  law  as  between  the 
original  parties,  the  acceptor,  maker,  or  other  party  ap- 
parently liable  on  the  instrument  may  invoke  this  jurisdic- 
tion of  equity,  before  the  maturity  of  the  paper,  against 
the  holder,  and  procure  an  injunction  restraining  him  from 
making  any  transfer  to  a  bona  fide  purchaser,  and  even  the 
final  relief  of  a  cancellation  or  surrender;  because  in  such 
a  case,  if  the  present  unlawful  holder,  although  the  legal 
defense  to  an  action  by  him  would  be  perfect,  should  trans- 
fer the  security  to  a  bona  fide  purchaser,  such  legal  defense 
would  be  cut  off,  and  the  injured  party  would  be  without 
adequate  and  complete  remedy  in  a  court  of  law.*^    This  doc- 

28  Conn.  501;  McHenry  v.  Hazard,  45  N.  Y.  580.  In  Hamilton  v.  Cura- 
mings,  1  Johns.  Ch.  517,  Chancellor  Kent  stated  the  rule  concerning  the 
exercise  of  the  jurisdiction  as  follows :  "  Perhaps  the  cases  may  all  be  recon- 
ciled on  the  general  principle  that  the  exercise  of  this  power  is  to  be  regu- 
lated by  sound  discretion,  as  the  circumstances  of  the  individual  cases 
may  dictate,  and  that  the  resort  to  equity,  to  be  sustained,  must  be  expe- 
dient, either  because  the  instrument  is  liable  to  abuse  from  its  negotiable 
character,  or  because  the  defense,  not  arising  upon  its  face,  may  be  difficult 
or  uncertain  at  law,  or  from  some  other  special  circumstances  peculiar 
to  the  case,  and  rendering  a  resort  to  chancery  proper  and  clear  of  all  sus- 
picion of  any  design  to  promote  expense  and  litigation."  I  would  remark 
that  the  statement  in  this  extract  that  the  exercise  of  the  jurisdiction  is  a 
matter  of  "  discretion  "  in  the  court,  which  was  a  favorite  mode  of  expres- 
sion among  some  equity  judges  of  a  former  day,  is  very  misleading,  no 
matter  how  much  the  word  is  guarded  by  adding  "  sound  "  or  "  judicial." 
No  part  of  the  regular  jurisdiction  of  equity  can  depend  upon  the  "  discre- 
tion "  of  the  judge,  if  the  word  is  used  in  any  signification  properly  belonging 
to  it.  In  Martin  v.  Graves,  5  Allen,  601,  the  court  thus  stated  the  general 
rule :  "  Whenever  a  deed  or  other  instrument  exists,  which  may  be  vexa- 
tiously  or  injuriously  used  against  a  party  after  the  evidence  to  impeach  or 
invalidate  it  is  lost,  or  which  may  throw  a  cloud  of  suspicion  over  his 
title  or  interest,  and  he  cannot  immediately  protect  or  maintain  his  right  by 
any  course  of  proceedings  at  law,  a  court  of  equity  will  afford  relief  by  direct- 
ing the  instrument  to  be  delivered  up  and  canceled,  or  by  making  any  other 
decree  which  justice  and  the  rights  of  the  parties  may  require." 

(c)  The  text  is  cited  in  Louisville,  cellation    of    negotiable    instruments 

N.  A.  &  C.  R.  R.  Co.  V.  Ohio  Val.  I.  &  not   generally   granted   when   applied 

C.    Co.,    57    Fed.    42,    45;    Druon    v.  for  after  their  maturity). 
Sullivan,  66  Vt.  609,  30  Atl.  98  (can- 


§    222  EQUITY   JUBISPKUDENCE.  312" 

trine  extends,  under  similar  circumstances,  to  the  transfer 
of  lands,  goods,  and  things  in  action  to  a  bona  fide  pur- 
chaser, where  the  rights  and  equities  of  the  original  grantor, 
vendor,  or  owner  would  be  cut  off,  and  he  would  be  deprived 
of  complete  relief  at  law,  as  against  the  bona  fide  trans- 
feree.^ Similar  illustrations  might  be  taken  from  the  set- 
tled rules  concerning  the  use  of  the  exclusive  jurisdiction 
to  grant  the  remedies  of  reformation,  re-execution,  inter- 
pleader, and  other  strictly  equitable  remedies,  in  order  ta 
maintain,  protect,  and  enforce  estates,  interests,  and  pri- 
mary rights  of  the  complaining  party,  which  are  legal  in 
their  nature;  but  the  foregoing  examples  are  sufficient  to 
explain  the  distinction,  and  to  show  the  generality  of  the 
principles  stated  in  the  preceding  paragraph. 

§  222.  Summary  of  the  Jurisdiction  as  Affected  by  the  Prin- 
ciple.—  The  principle  which  has  been  thus  explained  in 
the  preceding  paragraphs  of  this  chapter,  and  which  is  not 
a  mere  speculative  theory,  but  is  fully  sustained  by  settled 
rules  taken  from  every  part  of  the  equity  jurisprudence, 
presents  the  entire  equitable  jurisdiction  in  the  form  of 
a  simple,  well-defined,  and  consistent  system,  the  result  of 
a  few  plain  and  harmonious  rules.  Laying  out  of  view  for 
the  present  that  special  branch  of  equity  which  is  called  the 
"  auxiliary  jurisdiction,"  and  which  has  become  obsolete 
except  in  a  few  of  our  American  states,  the  administration 
of  the  equitable  jurisdiction,  and  the  resulting  doctrines- 
which  make  up  the  equity  jurisprudence,  may  be  separated, 
according  to  a  natural  order,  into  four  distinct  classes^ 
namely :  1.  Where  the  primary  right  or  interest  of  the  com- 
plaining party  which  has  been  invaded  is  purely  equitable, — 
one  which  the  doctrines  of  equity  jurisprudence  alone  create 

8  Hamilton  v.  Cummings,  1  Johns.  Ch.  517;  Delafield  v.  Illinois,  26  Wend. 
192;  Van  Doren  v.  Mayor  of  New  York,  9  Paige,  389;  Cox  v.  Clift,  2 
N.  Y.  118;  Town  of  Glastonbury  v.  McDonald,  44  Vt.  453;  Bank  of  Bellows 
Falls  V.  Rutland,  etc.,  R.  R.  Co.,  28  Vt.  470;  Franklin  v.  Green,  2  Allen,  520; 
Sherman  v.  Fitch,  98  Mass.  59;  Poor  v.  Carlcton,  3  Sum.  70;  Ferguson  v. 
Fisk,  28  Conn.  501;  Mitlor  v.  Mitler,  18  N.  J.  Eq.  270,  19  N.  J.  Eq.  257; 
Peiraoll  v.  Elliott.  6  Pet.  05. 


313  INADEQUACY    OF    I.EGAI.    EEMEDIES.  §    222 

and  recognize, —  and  liis  remedial  right  and  the  remedies 
which  he  obtains  are  also  wholly  equitable;  for  example, 
where  an  equitable  owner  of  land,  under  the  doctrines  of 
trust  or  of  conversion,  procures  the  declarative  relief  estab- 
lishing his  estate,  and  the  relief  of  specific  performance  by 
means  of  a  conveyance  of  the  legal  title.  2.  Where  the  pri- 
niary  right  or  interest  of  the  complaining  party  is  in  like 
manner  equitable,  and  the  remedies  which  he  asks  and  re- 
ceives are  legal ;  that  is,  are  of  the  same  kind  as  those  con- 
ferred by  courts  of  law;  for  example,  where  the  equitable 
owner  of  a  fund,  through  an  equitable  assignment,  estab- 
lishes his  ownership  and  recovers  the  fund  by  a  final  judg- 
ment which  is  simply  pecuniary.  3.  Where  the  primary 
right  or  interest  of  the  complaining  party  is  legal, —  one 
which  is  created  by  the  law,  and  cognizable  by  the  law 
courts, —  and  his  remedial  right,  and  the  remedies  which 
he  procures,  are  entirely  equitable ;  for  example,  where  the 
legal  owner  of  property  obtains  protection  to  his  possession 
or  enjoyment  by  means  of  injunction  against  tortious  acts, 
or  against  wrongful  proceedings  at  law,  or  protects  his 
title  from  disturbance,  or  himself  from  wrongful  demands, 
by  means  of  the  remedy  of  cancellation,  and  the  like.  4. 
Where  the  primary  right  or  interest  of  the  complaining 
party  is  legal,  recognized  and  maintainable  by  the  law 
courts,  and  the  remedies  which  he  obtains  are  also  legal, — 
of  the  same  kind  as  those  administered  and  conferred  by 
the  courts  of  law, —  recoveries  of  money,  or  of  specific 
lands  or  chattels;  for  example,  where  a  surety  sues  his 
principal,  under  his  right  of  exoneration,  to  recover  back 
the  money  paid  out  on  behalf  of  such  principal,  or  sues 
his  co-surety  to  recover  money,  under  his  right  of  contribu- 
tion ;  or  where  an  owner  in  common  of  land  by  a  legal  estate 
therein  recovers  his  own  specific  portion  by  a  partition,  and 
the  like.  All  possible  cases  of  equity  may  be  referred  to  one 
or  the  other  of  these  four  divisions.  The  first  three  belong 
to  the  *'  exclusive  "  jurisdiction;  the  fourth  constitutes  the 


§    223  EQUITY   JURISPRUDENCE.  314 

**  concurrent  "  jurisdiction.  Furthermore,  in  the  first  and 
second,  the  jurisdiction  is  not  only  exclusive,  but  is  exer- 
cised as  a  matter  of  right  in  behalf  of  the  complaining  party 
whenever  he  has  an  equitable  estate,  interest,  or  primary 
right,  according  to  the  doctrines  of  equity  jurisprudence. 
In  the  third  division,  although  the  jurisdiction  always  exists 
and  is  exclusive,  it  is  not  exercised  on  behalf  of  the  com- 
plaining party  as  a  matter  of  right  in  him ;  its  proper  exer- 
cise depends  upon  the  inadequacy  of  the  legal  remedies 
which  he  might  obtain  to  do  him  complete  justice.  Finally, 
in  the  fourth  division,  the  very  existence  as  well  as  the  exer- 
cise of  the  jurisdiction,  being  concurrent,  depends  upon  the 
inadequacy  of  the  remedies  which  the  party  could  obtain 
from  a  court  of  law,  owing  partly  to  the  form  of  those 
remedies  themselves,  and  partly  to  the  imperfection  of  the 
legal  mode  of  procedure. 


SECTION  n. 

DISCOVERY  AS  A  SOURCE  OR  OCCASION  OF  JURISDICTION. 

ANALYSIS. 

§  223.  General  doctrine  as  to  discovery  aa  a  source  of  concurrent  and 
an  occasion  for  exclusive  jurisdiction. 
|§  224,225.  Early  English  rule. 

§  226.  Present  English  rule. 
55  227-229.  Broad  rule  established  in  some  American  states. 

§  229.  The  limitations  of  this  rule. 

§  230.  The  true  extent  and  meaning  of  this  rule  examined. 

§  223.  General  Doctrine." — It  has  already  been  shown 
that,  under  the  general  jurisdiction  of  equity,  a  suit  of  dis- 
covery alone  without  relief  might  be  maintained  in  order 
to  procure  admissions  from  the  defendant  to  be  used  on  the 
trial  of  an  action  at  law  between  the  same  parties;  and  that 

(a)  This    and    the     following    sec-       Collier    v.    Collier    (N.    J.    Eq.),    33 
tions  are   cited   in   Yates  v.   Stuart's       Atl.   193. 
Adm'r,  39  W.  Va.  124,  19  S.  E.  423; 


315  DISCOVERY    AS    A   SOURCE    OF    JURISDICTION.  §    224 

in  every  equitable  suit  brought  for  any  purpose  of  relief 
over  which  a  court  of  equity  has  jurisdiction,  the  plaintiff 
may  make  his  pleading  a  means  of  discovery,  and  may  com- 
pel the  defendant  to  disclose "  facts  within  his  knowledge 
material  to  the  issue,  which  can  be  used  as  evidence  on  the 
hearing.  In  addition,  however,  to  these  original  and  strictly 
proper  functions  of  discovery,  the  doctrine  has  been  estab- 
lished in  many  of  the  American  states,  and  to  a  very  limited 
and  partial  extent  in  England,  that  discovery  itself  is,  under 
certain  circumstances,  an  independent  source  or  foundation 
of  the  equitable  jurisdiction  to  adjudicate  upon  matters  and 
to  award  reliefs  which  are  otherwise  purely  legal.  In  other 
words,  that,  under  certain  circumstances,  where  the  plain- 
tiff has  asked  and  obtained  a  discovery,  the  court  of  equity 
may  go  on  and  decide  the  whole  issue,  and  grant  the  requi- 
site remedies,  although  the  subject-matter  of  the  controversy 
and  the  primary  rights  and  interests  of  the  party  are 
wholly  legal  in  their  nature,  and  the  remedies  conferred  are 
of  such  a  kind  as  a  court  of  law  can  administer.  A  fortiori, 
then,  may  discovery  be  a  proper  occasion  for  exercising  the 
jurisdiction  in  cases  belonging  to  the  exclusive  jurisdiction, 
where  an  equitable  remedy  is  needed  in  support  of  a  legal 
right  or  interest.  This  doctrine  has,  of  course,  become 
obsolete  wherever  the  auxiliary  suit  for  a  discovery  has 
itself  been  abolished;  but  since  the  doctrine  prevailed  in 
some  states  which  still  retain  the  separate  equity  jurisdic- 
tion, and  the  ancillary  method  of  discovery  as  an  incident 
thereof,  some  discussion  of  it  seems  to  be  necessary. 

§  224.  Early  English  Rule. —  The  earlier  English  cases 
fail  to  establish  any  rule,  and  leave  the  matter  in  a  condi- 
tion of  uncertainty.  There  are  dicta  of  eminent  judges  and 
some  decisions  which  undoubtedly  go  to  the  length  of  hold- 
ing, as  a  general  proposition,  that  wherever  a  party  is  en- 
titled to  and  obtains  a  discovery  in  a  suit  brought  directly 
and  primarily  for  that  purpose,  the  court  of  equity  will  go 
on  and  decide  the  issues  and  grant  the  requisite  relief,  al- 


§    224  EQUITY   JURISPRUDENCE.  31S 

though  the  subject-matter  of  the  controversy  and  the  pri- 
mary rights  involved  and  the  reliefs  conferred  are  not 
otherwise  within  even  the  concurrent  equitable  jurisdiction^ 
but  are  cognizable  by  the  courts  of  law,  and  the  legal  reme- 
dies obtainable  in  the  particular  case  are  adequate.  This- 
conclusion  is  said  to  result  from  the  doctrine  that  when  a 
court  of  equity  has  obtained  jurisdiction  of  a  cause  for  any 
purpose,  it  will  go  on  and  determine  the  entire  matters  in 
dispute,  in  order  to  avoid  a  multiplicity  of  suits.^  These^ 
expressions  of  judicial  opinion  are  certainly  very  loose,  and 
unless  carefully  limited,  would  extend  the  equitable  juris- , 
diction  far  beyond  its  legitimate  boundaries.  The  doctrine 
has  therefore  been  stated  in  a  much  more  guarded  and  re- 
stricted manner.  An  early  treatise  of  high  authority,  after 
admitting  the  impossibility  of  extracting  a  more  definite- 
rule  from  the  conflicting  decisions,  says:  "  The  courts 
having  acquired  cognizance  of  the  suit  for  the  purpose  of 
discovery,  will  entertain  it  for  the  purpose  of  relief,  in 
most  cases  of  fraud,  account,  accident,  and  mistake. ' '  ^ 
Later  decisions  have  been  still  more  guarded,  and  seem  ta 

1  The  earlier  English  cases  and  dicta  are  by  no  means  unanimous  in  sup- 
porting this  conclusion;  some  of  them  are  directly  opposed  to  it,  and  there  is 
an  irreconcilable  conflict  among  them:  See  Adley  v.  Whitstable,  17  Ves.  329, 
per  Lord  Eldon;  Ryle  v.  Haggle,  1  Jacob  &  W.  234,  236,  237,  per  Sir  Thomas 
Plumer;  McKenzie  v.  Johnston,  4  Madd.  373,  per  Sir  John  Leach;  Parker 
V.  Dee,  2  Cas.  Ch.  200,  201,  per  Lord  Nottingham;  Jesus  College  v.  Bloom, 
3  Atk.  262,  263,  Amb.  54;  Geast  v.  Barker,  2  Brown  Ch,  61;  Duke  of  Leeda 
V.  New  Radnor,  2  Brown  Ch.  388,  519;  Bishop  of  Winchester  v.  Knight,  1 
P.  Wms.  400;  Kemp  v.  Pryor,  7  Ves.  248,  249,  per  Lord  Eldon. 

2  Fonblanque's  Equity,  b.  1,  chap.  1,  §  3,  note  f:  "  The  concurrence  of  juris- 
diction may,  in  the  greater  number  of  cases  in  which  it  is  exercised,  be 
justified  by  the  propriety  of  preventing  a  multiplicity  of  suits;  for  as  the- 
mode  of  proceeding  in  courts  of  law  requires  the  plaintiff  to  establish  his  case 
without  enabling  him  to  draw  the  necessary  evidence  from  the  examination 
of  the  defendant,  justice  could  never  be  attained  at  law  in  those  cases  where 
the  principal  facts  to  be  proved  by  one  party  are  confined  to  the  knowledge 
of  tlie  other  party.  In  such  cases,  therefore,  it  becomes  necessary  for  the 
party  wanting  such  evidence  to  resort  to  the  extraordinary  powers  of  a 
court  of  equity,  which  will  compel  the  necessary  discovery;  and  the  court, 
having  acquired  cognizance  of  the  suit  for  the  purpose  of  discovery,  will 
entertain  it  for  the  purpose  of  relief  in  most  cases  of  fraud,  account,  accident, 
and  mistake." 


517  DISCOVERY   AS   A   SOURCE    OF    JURISDICTION.  §    225 

reject  discovery  as  a  distinct  and  independent  source  or 
foundation  of  the  equitable  jurisdiction  in  any  cases ;  that 
is,  to  deny  that  relief  would  be  granted  merely  as  a  conse- 
quence of  discovery  in  any  case  which  did  not  otherwise 
come  within  some  recognized  branch  of  the  equitable  juris- 
diction, either  exclusive  or  concurrent.^ 

§  225.  If  it  be  generally  true  that  a  court  ''  having  ac- 
quired jurisdiction  of  a  suit  for  the  purpose  of  discovery 
will  entertain  it  for  purpose  of  relief  in  most  cases  of  fraud, 
account,  accident,  and  mistake,"  what  is  the  real  signifi- 

3  Thus  in  Pearce  v.  Creswick,  2  Hare,  293,  per  Wigram,  V.  C. :  "  The 
frst  proposition  relied  upon  by  the  plaintiff  in  support  of  the  equity  of 
his  bill  was  this,  that  the  case  was  one  in  which  the  right  to  discovery  would 
carry  with  it  the  right  to  relief.  And  undoubtedly  dicta  are  to  be  met  with 
tending  directly  to  the  conclusion  that  the  right  to  discovery  may  entitle 
a  plaintiff  to  relief  also.  In  Adley  v.  Tlie  Whitstable  Co.,  17  Ves.  329, 
Lord  El  don  says:  '  Tliere  is  no  mode  of  ascertaining  what  is  d\ie  except 
an  account  in  a  court  of  equity;  but,  it  is  said,  the  party  may  have  dis- 
covery, and  then  go  to  law.  The  answer  to  that  is,  that  the  right  to  the 
discovery  carries  along  with  it  the  right  to  relief  in  equity.'  In  Ryle  v. 
Haggle,  I  Jacob  &  W.  236^  Sir  Thomas  Plumer  said:  'When  it  is  admitted 
that  a  party  comes  here  properly  for  the  discovery,  the  court  is  never  dis- 
posed to  occasion  a  multiplicity  of  suits  by  making  him  go  to  a  court  of  law 
for  the  relief.'  And  in  McKenzie  v.  Johnston,  4  Madd.  373,  Sir  John  Leach 
says :  '  The  plaintiff  can  only  learn  from  this  discovery  of  the  defendants 
how  they  have  acted  in  the  execution  of  their  agency,  and  it  would  be  most 
unreasonable  that  he  should  pay  them  for  that  discovery,  if  it  turned  out  that 
they  had  abused  his  confidence;  yet  such  must  be  the  case  if  a  bill  for  re- 
lief will  not  lie.'  Now,  in  a  case  in  which  I  think  that  justice  requires 
the  court,  if  possible,  to  find  an  equity  in  this  bill,  to  enable  it,  once  for  all, 
to  decide  the  question  between  the  parties,  I  should  reluctantly  deprive 
the  plaintiff  of  any  remedy  to  which  the  dicta  I  have  referred  to  may  entitle 
him.  But,  I  confess,  the  arguments  founded  upon  these  dicta  appear  to  me 
to  be  exposed  to  the  objection  of  proving  far  too  much.  They  can  only  be 
reconciled  with  the  ordinary  practice  of  the  court,  by  understanding  them 
as  having  been  uttered  with  reference  in  each  case  to  the  subject-matter 
to  which  they  were  applied,  and  not  as  laying  down  any  abstract  proposition 
so  wide  as  the  plaintiff's  argument  requires.  I  think  this  part  of  the  plain- 
tiff's case  cannot  be  stated  more  higlily  in  his  favor  than  this,  that  the 
necessity  a  party  may  be  under  (from  the  very  nature  of  a  given  transaction) 
to  come  into  equity  for  discovery,  is  a  circumstance  to  be  regarded  in  decid- 
ing upon  the  distinct  and  independent  question  of  equitable  jurisdiction; 
further  than  this  I  have  not  been  able  to  follow  this  branch  of  the  plaintiff's 
argument."  And  see  Mitchell  v.  Greene,  10  Met.  101;  Pease  v.  Pease,  8 
Met.  396. 


§    225  EQUITY    JURISPRUDENCE.  318- 

cance  of  this  proposition  ?  It  does  not  assert  that  mere  dis- 
covery is  an  independent  source  of  jurisdiction  in  any  case 
where  it  ivould  not  otherwise  exist;  it  simply  regards  a  dis- 
covery obtained  as  the  proper  occasion  for  exercising  the^ 
jurisdiction,  sometimes  exclusive,  sometimes  concurrent,  in 
certain  classes  of  cases  where  such  jurisdiction  already 
exists, —  that  is,  may  be  exercised, —  in  pursuance  of  settled 
doctrines  of  the  equity  jurisprudence.  In  many  cases  of 
fraud,  mistake,  or  accident,  the  exclusive  jurisdiction  exists 
to  award  purely  equitable  remedies  in  support  of  legal  in- 
terests and  primary  rights  of  the  plaintiff ;  and  such  juris- 
diction will  be  exercised  in  these  cases,  according  to  the 
principle  heretofore  explained,  whenever  the  legal  remedies 
obtainable  therein  are  inadequate.  Also,  in  many  cases  of 
fraud,  mistake,  accident,  or  account,  the  concurrent  juris- 
diction exists  to  award  remedies  of  a  kind  which  are  purely^ 
legal,  such  as  pecuniary  recoveries,  in  support  of  the  legal 
interests  and  primary  rights  of  the  plaintiff,  whenever  the 
remedies  obtainable  from  a  court  of  law  are  inadequate^, 
through  the  imperfection  of  the  legal  modes  of  procedure. 
Now,  the  proposition  quoted  above  simply  asserts  that  in 
all  cases  falling  within  either  of  the  two  classes  last  men- 
tioned, in  all  such  cases  belonging  either  to  the  exclusive- 
or  to  the  concurrent  jurisdiction,  the  very  fact  that  a  dis- 
covery is  necessary  for  the  plaintiff,  and  is  obtained  by 
him,  shows  of  itself,  and  independent  of  any  other  consid- 
erations, that  the  case  is  one  in  which  the  ordinary  remedies 
at  law  are  inadequate,  and  therefore  that  the  equitable 
jurisdiction  is  proper  in  such  case.  In  other  words,  the 
discovery  obtained  in  such  cases  belonging  to  the  exclusive 
jurisdiction  is  of  itself  a  fact  showing  that  the  legal  reme- 
dies are  inadequate  to  do  complete  justice  to  the  pj^rties 
therein,  and  that  the  exercise  of  the  exclusive  jurisdiction^ 
by  conferring  equitable  remedies,  is  both  proper  and  neces- 
sary. Also,  the  discovery  obtained  in  such  cases  belonging 
to  the  concurrent  jurisdiction  is  of  itself  a  fact  showing  that 
the  remedies  recoverable  at  law  by  the  parties  therein  are 


319  DISCOVERY    AS    A    SOURCE    OF    JURISDICTION.  §    226 

inadequate,  and  that  the  concurrent  equitable  jurisdiction 
of  the  controversy  exists,  and  should  be  enforced  by  decid- 
ing all  the  issues  and  awarding  the  appropriate  reliefs,  al- 
though they  may  be  of  the  same  kind  as  those  conferred  at 
law.  This  view,  as  it  seems  to  me,  removes  all  conflict  ap- 
pearing in  the  English  decisions  and  dicta,  and  brings  the 
effect  of  discovery  into  a  complete  harmony  with  the  gen- 
eral principles  concerning  jurisdiction.  It  rejects  the  no- 
tion that  the  mere  fact  of  discovery  has  any  power  to  en- 
large the  equitable  jurisdiction,  or  to  extend  that  jurisdic- 
tion, whether  exclusive  or  concurrent,  to  any  cases  in  which 
it  does  not  otherwise  exist;  on  the  other  hand,  it  admits 
that,  in  cases  otherwise  belonging  either  to  the  exclusive  or 
the  concurrent  jurisdiction,  a  discovery  obtained  may  be  the 
determining  fact  upon  which  the  proper  exercise  of  that 
jurisdiction  depends, —  the  fact  which,  without  any  other 
accident,  renders  the  legal  remedies  inadequate,  and  thus 
sets  in  motion  the  judicial  machinery  of  equity. 

§  226.  Present  English  Rule. —  The  conclusion  thu& 
reached  is  fully  sustained  by  the  more  modern  English 
decisions.  The  rule  fully  settled  by  the  English  courts^ 
before  the  auxiliary  jurisdiction  over  discovery  was  finally 
abolished  by  the  supreme  court  of  judicature  act,^  was,  that 
if  the  controversy  and  the  issues  involved  in  it  are  not 
otherwise  within  the  equitable  jurisdiction,  either  exclusive 
or  concurrent,  and  the  legal  remedies  obtainable  in  the  case 
are  adequate,  a  bill  properly  for  discovery  without  any  re- 
lief, in  aid  of  a  pending  or  expected  action  at  law,  can  alone 
be  maintained;  and  if  in  such  a  bill  the  plaintiff  demands 
relief,  either  general  or  special,  the  whole  is  demurrable.^ 
This  rule  confines  discovery  to  its  legitimate  function  of 

iSee  ante,  §   193. 

2  Foley  V.  Hill,  2  H.  L,  Cas.  28,  37 ;  Morris  v.  Morgan,  10  Sim.  341 ;  Benyon 
V.  Nettlefold,  3  Macn.  &  G.  94;  Deare  v.  Attorney-General,  1  Younge  &  0. 
205,  206;  Albretcht  v.  Sussman,  2  Ves.  &  B.  328;  and  see  Story's  Eq.  PI., 
§  312,  note  3,  and  cases  there  cited.  The  same  doctrine  as  to  the  effect  of 
discovery  upon  the  jurisdiction  has  been  adopted  in  some  American  states: 
Mitchell  V.  Greene,  10  Met.  101;  Pease  v.  Pease,  8  Met.  395;  Little  v.  Cooper, 


§    227  EQUITY   JURISPRUDENCE.  320 

furnishing  evidence,  and  prevents  it  from  operating  to  ex- 
tend the  equitable  jurisdiction  to  causes  which  would  other- 
wise be  solely  cognizable  at  law. 

§  227.  American  Rule. —  A  very  different  doctrine  has 
been  asserted  and  perhaps  established  by  the  courts  of  sev- 
eral American  states,  in  which  the  separate  jurisdiction  of 
chancery  formerly  existed,  and  of  other  states  in  which  such 
separate  jurisdiction  is  still  preserved;  and  the  doctrine 
thus  affirmed  has  sometimes  been  spoken  of  by  writers  and 
judges  as  the  distinctively  American  doctrine  on  the  subject. 
It  may  well  be  doubted,  however,  whether,  with  all  the  limi- 
tations and  exceptions  which  have  been  suggested,  any  doc- 
trine can  be  considered  as  having  been  fairly  established 
by  a  preponderance  of  judicial  decisions  (not  of  mere  dicta) 
which  goes  beyond  the  general  proposition  quoted  in  a  pre- 
ceding paragraph,  at  one  time  admitted  by  English  text- 
writers.^  The  rule  has  been  asserted  by  many  American 
courts  in  very  general  terms,  that  whenever  a  court  of 
equity  has  obtained  jurisdiction  of  a  cause  for  any  one  pur- 
pose, it  may  retain  such  cause  for  the  purpose  of  adjudi- 
cating upon  all  the  matters  involved,  and  of  granting  com- 
plete relief.  As  a  consequence  of  this  principle,  whenever 
the  court  can  entertain  a  suit  for  discovery,  and  a  discovery 
is  obtained,  the  court  will  go  on  and  decide  the  whole  issue, 
and  will  grant  to  the  plaintiff,  if  he  has  prayed  for  it,  what- 
ever relief  is  proper,  even  though  such  relief  is  legal  in  its 

10  N.  J.  Eq.  273;  Miller  v.  Scammon,  52  N.  H.  GOD,  610;  Stone  v.  Anderson, 
26  N.  H.  506,  518;   Stevens  v.  Williams,   12  N,  H.  246;  Tappan  v.  Evans, 

11  N.  H.  311,  325.« 

1  Ante,  §  224.  I  refer  to  the  general  proposition  laid  down  in  Fonblanquc's 
Equity,  that  when  the  court  has  acquired  jurisdiction  for  a  discovery,  it  will 
entertain  jurisdiction  for  relief  in  most  cases  of  fraud,  accident,  mistake,  and 
account. 

(a)  See  also  De  Bevoise  v.  H.  &  W.  practice  is  modeled  on  the  established 

Co.   (N.  J.  Kq.),  58  Atl.  91;  People's  English  practice,  and  that  "in  a  case 

Nat.  IJank  v.  Kern,  193  Pa.  St.  59,  44  in    which    discovery    and    relief    are 

Atl.  331;  India  Rubber  Co.  v.  Consol.  sought,  but  the  only  ground  for  equi- 

Rubber     Tire     Co.,     117     Fed.     354;  table  relief  appears  to  be  a  discovery 

Saflord  v.  Ensign  Mfg.  Co.  (C.  C.  A.),  of  evidence  to  be  used  in  the  enforce- 

120   Fed.  480,  483.     In  the  last  case  ment  of  a   purely  legal  demand,  the 

It  is   stated   that   the   federal   equity  jurisdiction  cannot  be  sustained." 


321  DISCOVERY    AS   A   SOURCE    OF    JURISDICTION.  §    227 

kind,  and  could  have  been  obtained  by  an  action  at  law.^ " 
These  general  expressions  would  seem  to  extend  the  con- 
current jurisdiction  of  equity  almost  without  limit,  over 
matters  ordinarily  cognizable  at  law.  It  is  not  a  little  re- 
markable that  courts  which,  in  relation  to  some  matters, 
have  shown  a  strong  tendency  to  restrict  the  equitable  juris- 
diction, upon  the  alleged  ground  that  the  remedies  at  law 
are  adequate,  should  thus  have  opened  the  door  for  an 
apparently  indefinite  extension  of  the  jurisdiction  over 
large  classes  of  cases  in  which,  excepting  the  single  incident 

SRathbone  v.  Warren,  10  Johns.  587,  596;  King  v.  Baldwin,  17  Johns.  384, 
8  Am.  Dec.  415;  Gelstori  v.  Hoyt,  1  Johns.  Ch.  543;  Seymour  v.  Seymour, 
4  Johns.  Ch.  409;  Shepard  v.  Sanford,  3  Barb.  Ch.  127;  Sanborn  v.  Kittredge, 
20  Vt.  632,  50  Am.  Dec.  58;  Holmes  v.  Holmes,  36  Vt.  525;  Traip  v.  Gould, 
15  Me.  82;  Isham  v.  Gilbert,  3  Conn.  166;  Middletown  Bank  v.  Russ,  3  Conn. 
135,  139,  8  Am.  Dec.  164;  Lyons  v.  Miller,  6  Gratt.  438,  52  Am.  Dec.  129; 
Chichester's  Executors  v.  Vass's  Administrators,  1  Munf.  98,  4  Am.  Dec.  531; 
Sims  V.  Aughtery,  4  Strob.  Eq.  121;  Ferguson  v.  Waters,  3  Bibb,  303;  Brooks 
V.  StoUey,  3  McLean,  523;  Warner  v.  Daniels,  1  Wood.  &  M.  90;  Foster  v. 
Swasey,  2  Wood.  &  M.  217;  Hepburn  v.  Dunlop,  1  Wheat.  197;  Russell  v. 
Clark's  Executors,  7  Craneh,  69.  In  the  last-named  case,  the  United  States 
supreme  court  went  so  far  as  to  announce  the  following  universal  rule: 
"  That  if  certain  facts  essential  to  the  merits  of  a  claim  jyurely  legal  be  exclu- 
sively within  the  knowledge  of  the  party  against  whom  that  claim  is  asserted, 
he  may  be  required  in  a  court  of  chancery  to  disclose  those  facts;  and  the 
■court,  being  thus  rightfully  in  possession  of  the  cause,  will  proceed  to  deter- 
mine the  whole  matter  in  controversy." 

(a)  The  text  is  cited  in  Collier  v.  v.  Kern,  193  Pa.  St.  59,  44  AtL  331. 
Collier  (N.  J.  Eq.),  33  Atl.  193.  See  In  Miller  v,  U.  S.  Casualty  Co.,  61 
also  Wallis  v.  Skelly,  30  Fed.  747;  N.  J.  Eq.  110,  47  Atl.  509,  it  was 
New  York  Ins.  Co.  v.  Roulet,  24  said  that  "  the  court  has  not  juris- 
Wend.  505  (opinion  of  Senator  Ed-  diction  to  decree  relief  upon  a  purely 
wards)  ;  Wood  v.  Hudson,  96  Ala.  legal  claim  imder  the  general  prayer 
469,  11  South.  530;  Thompson  v.  for  relief "  in  a  bill  for  discovery.  It 
Whitaker  Iron  Co.,  41  W.  Va.  574,  23  has  been  held  that  equity  will  take 
S.  E.  795;  Smith  v.  Smith's  Adm'r,  jurisdiction  of  accounts  which  are  all 
92  Va.  696,  24  S.  E.  280;  Roanoke  on  one  side  only  when  discovery  ig 
St.  R'y  Co.  V.  Hicks,  96  Va.  510,  32  sought  and  is  material  to  the  relief. 
«.  E.  295;  Dock  v.  Dock,  ISO  Pa.  St.  Yates  v.  Stuart's  Adm'r,  39  W.  Va. 
14,  57  Am.  St.  Rep.  617,  36  Atl.  411  124,  19  S.  E.  423.  It  is  frequently 
(on  a  bill  for  discovery  and  produc-  stated  that  equity  will  take  jurisdic- 
tion of  private  letters,  recovery  of  tion  of  accounts  when  discovery  ia 
-the  letters  may  be  decreed)  ;  Lancy  necessary.  Lafever  v.  Billmyer,  5  W. 
•V.  Randlett,  80  Me.  169,  6  Am.  St.  Va.  33;  Coffman  V.  Sangston,  21 
Rep.  169.    But  see  People's  Nat.  Bank  Gratt.  263. 

Vol.  1  —  21 


§    228  EQUITY   JURISPRUDENCE.  322 

of  a  discovery  of  evidence,  the  legal  remedies  are  con- 
fessedly adequate.^ 

§  228.  It  is  plain  that  this  doctrine,  although  expressed 
in  such  broad  terms,  cannot  be  intended  to  operate  in  all  of 
its  generality.  Taken  literally  and  without  limitation,  it 
would  break  down  the  barriers  between  the  jurisdictions  in 
equity  and  at  law,  and  would  virtually  render  the  equitable 
jurisdiction  universal  by  bringing  every  judicial  contro- 
versy within  its  scope.  Before  the  modern  legislation  con- 
cerning witnesses  and  evidence,  the  actions  at  law  were 
very  few  in  which  one  or  the  other  of  the  parties  might  not 
be  aided  by  a  discovery,  and  might  not,  in  conformity  with 
settled  rules,  maintain  a  suit  for  a  discovery.  If  a  discov- 
ery, therefore,  rightfully  demanded  and  obtained,  were  of 
itself  sufficient  to  bring  the  entire  cause  within  the  jurisdic- 
tion of  chancery  for  final  adjudication  upon  its  merits,  it 
is  plain  that  almost  every  kind  and  class  of  purely  legal 
actions  could  thus  be  brought  within  the  equitable  concur- 
rent jurisdiction;  and  the  fundamental  principle,  that  the 
concurrent  equitable  jurisdiction  only  exists  in  cases  where 
the  legal  remedies  are  inadequate,  would  practically  be 
abrogated, —  would  become  an  empty  formula.  This  con- 
clusion, which  is  a  necessary  deduction  from  the  assumed 
premises,  shows  that  the  premises  themselves  are  false. 
The  doctrine  of  which  it  is  a  consequence  cannot  be  true  in 
all  the  generality  of  its  statement.^ 

3  The  extreme  reluctance  of  some  American  courts  to  extend  the  juris- 
diction of  equity,  even  where  such  extension  consists  solely  in  applying 
familiar  principles  to  new  conditions  of  fact,  is  in  marked  contrast  with  the 
freedom  shown  by  English  chancery  judges  in  developing  the  equity  juris- 
prudence. An  illustration  may  be  seen  in  their  refusal  to  use  the  injunc- 
tion to  restrain  trespasses,  or  to  restrain  the  breach  of  contracts,  or  to 
use  the  mandatory  injunction,  in  many  instances  where  such  use  has  become 
common  in  England.  In  the  face  of  this  tendency,  the  adoption  by  the 
same  courts  of  a  general  rule,  which,  if  not  limited,  would  sweep  almost 
every  case  at  law  within  the  equitable  jurisdiction,  is,  to  say  the  least,  very 
remarkable. 

1  See  Foley  v.  Hill,  2  H.  L.  Cas.  28,  37,  per  Lord  Cottonham,  where  this 
able  chanoollor  thus  described  the  cfTect  of  the  notion  that  discovery  alone 
is  a  source  of  jurisdiction:     "It  is  not  because  you  are  entitled  to  disco/ery 


323  DISCOVEEY   AS    A    SOUECE    OF    JURISDICTION.  §    229 

§  229.  Limitations  were  therefore  established  which 
very  much  restricted  the  operation  of  the  doctrine.  In  thet 
first  place,  the  rule  is  settled  in  those  American  courts- 
which  admit  the  general  doctrine  that  when  the  action  i& 
one  cognizable  at  law,  in  which  the  rights  and  remedies  are 
legal,  and  which  does  not  otherwise  belong  to  the  equitable 
jurisdiction,  but  which  the  plaintiff  brings  in  a  court  of 
equity  under  the  doctrine  that  a  discovery  of  itself  enables 
equity  to  extend  its  concurrent  jurisdiction  over  the  whole 
cause,  he  must  allege  that  the  facts  concerning  which  he 
seeks  a  disclosure  are  material  to  his  cause  of  action,  and 
that  he  has  no  means  of  proving  those  facts  by  the  testi- 
mony of  witnesses  or  by  any  other  kind  of  evidence  used  in 
courts  of  law,  that  the  only  mode  of  establishing  them  is  by 
compelling  the  defendant  to  make  disclosure,  and  therefore 
that  a  discovery  by  suit  in  equity  is  indispensable.''  With- 
out these  allegations  the  plaintiff  cannot  avail  himself  of 

that  therefore  you  are  entitled  to  an  account.  That  is  entirely  a  fallacy. 
That  would,  if  carried  to  the  extent  to  which  it  would  be  carried  by  the- 
argument,  make  it  appear  that  every  case  is  a  matter  of  equitable  jurisdic- 
tion, and  that  where  a  plaintiff  is  entitled  to  a  demand  he  may  come  to  a 
court  of  equity  for  a  discovery.  But  the  rule  is,  that  where  a  case  is  so 
complicated,  or  where  from  other  circumstances  the  remedy  at  law  will  not 
give  adequate  relief,  then  the  court  of  equity  assumes  jurisdiction."  As  thi» 
case  was  one  for  an  accounting,  the  chancellor,  in  his  remarks,  was  speak- 
ing directly  of  the  remedy  for  an  account. 

(a)  Cited  to  this  effect  in  Thomp-  South.  256).     "To  make  his  prayer 

son  V.  Whitaker  Iron  Co.,  41  W.  Va.  for   discovery   a  ground   of  equitable 

574,  23  S.  E.  795;  Lancey  V.  Randlett,  jurisdiction,    plaintiff    should    allege 

80  Me.   169,   13  Atl.  686,   6  Am.   St.  his  inability  to  establish  at  law  the 

Rep.    169.      To    the    same    effect,    see  facts  of  which  the  discovery  is  sought. 

Marsh  v.  Davison,  9  Paige,  580;  Rob-  It   would   have   been   otherwise   were 

son  V.  Doyle,   191   111.  566,  61   N.  E.  the    bill     merely    for    a    discovery." 

435    (dictum)  ;    Wolf  v.   Underwood,  Cecil  Nat.  Bank  v.  Thurber,  59  Fed. 

96  Ala.  329,  11  South.  344;  Shackel-  913,  8  C.  C.  A.  365,  8  U.  S.  App.  496. 

ford  V.  Bankhead,  72  Ala.  476;  Sulli-  In  Brown  v.  Swann,  10  Pet.  497,  the 

van  V.  Lawler,  72  Ala.  74 ;  Pollak  v.  court  said :     "  The  courts  of  common 

H.  B.   Claflin  Co.    (Ala.),  35  South.  law  having  full  power  to  compel  the 

645    (citing  Guice  v.  Parker,  46  Ala.  attendance    of    witnesses,    it    follows 

616;  Dickinson  v.  Lewis,  34  Ala.  638,  that  the  aid  of  equity  can  alone  be 

645 ;     Continental    Life    Ins.    Co.    v.  wanted  for  a  discovery  in  those  cases 

Webb,   54  Ala.   688;   Virginia  A.   M.  where  there  is   no  witness,  to   prove 

ft   M.    Co.   V.   Hale,    93   Ala.    542,   9  what  is  sought  from  the  conscience 


§    229  EQUITY   JURISPRUDENCE.  324 

the  doctrine,  and  obtain  relief  as  a  consequence  of  the  dis- 
covery. Nor  are  these  allegations  a  mere  empty  form,  a 
mere  fiction  of  pleading ;  they  may  be  controverted,  must  be 
supported  by  proof,  and  if  disproved,  the  whole  foundation 
for  the  equitable  interference  in  the  case  would  fail.^  In 
the  second  place,  if  the  defendant  by  his  answer  fully  denies 
^11  the  allegations  of  fact  with  respect  to  which  a  discovery 
is  demanded,  the  whole  suit  must  fail;  the  court  of  equity 
•cannot  grant  the  relief  prayed  for,  since  its  jurisdiction  to 
.give  relief  in  such  causes,  according  to  the  very  assumption, 
rests  upon  the  fact  of  a  discovery  rightfully  obtained."  ^ 

1  Gelston  v.  Hoyt,  1  Johns.  Cli.  543 ;  Seymour  v.  Seymour,  4  Johns.  Ch. 
409;  Laight  v.  Morgan,  1  Johns.  Cas.  492,  2  Caines  Cas.  344;  Bank  of  U.  S. 
V.  Biddle,  2  Pars.  Cas.  31;  Lyons  v.  Miller,  6  Gratt.  427,  438,  52  Am.  Dec. 
129;  Duvals  v.  Ross,  2  Munf.  290,  296;  Bass  v.  Bass,  4  Hen.  &  M.  478; 
Pryor  v.  Adams,  1  Call,  382,  1  Am.  Dec.  533;  Stacy  v.  Pearson,  3  Ptich.  Eq. 
148,    152;    Sims   v.   Aughtery,   4    Strob.   Eq.    103,    121;    Merchants'    Bank   v. 

Davis,  3  Ga.  112;  Bullock  v.  Boyd,  2  A.  K.  Marsh.  322;  Emerson  v.  Staton, 
3  T.  B.  Mon.  116,  118.  In  an  early  case.  Chancellor  Kent,  through  a  mis- 
taken view  concerning  discovery,  held  that  these  same  allegations  by  the 
plaintiff  are  essential  in  every  equity  suit  for  a  mere  discovery  alone  without 
any  relief,  in  aid  of  a  pending  or  expected  action  at  law,  and  that  if  such 
averments  are  omitted  from  the  bill,  the  suit  for  a  discovery  must  fail :  Gel- 
ston V.  Hoyt,  1  Johns.  Ch.  543.  This  erroneous  ruling  was  followed  by  the 
same  court  in  Seymour  v.  Seymour,  4  Johns.  Ch.  409 ;  Leggett  v.  Postley,  2 
Paige,  599;  and  by  other  courts  in  other  cases.  But  this  mistaken  view 
has  been  corrected,  and  these  decisions  overruled,  and  the  requirement 
given  in  the  text  confined  to  cases  where  the  plaintiff  demands  relief  legal 
in  its  nature  as  a  direct  consequence  of  the  discovery:  March  v.  Davison,  9 
Paige,  580;  Vance  v.  Andrews,  2  Barb.  Ch.  370.  And  see  other  cases,  ante, 
5  197,  note,  where  this  point  is  more  fully  explained. 

2  This  results  from  the  general  principle  concerning  all  discovery,  stated 
in  a  preceding  section,  that  the  actual  discovery  obtainable  by  the  plaintiff 

•of   the    interested   party.      Courts   of  him,  and  that  the  complainant  is  un- 

chancery  have,  then,  established  rules  able   to    prove   them    by    other   testi- 

for  the  exercise  of  this  jurisdiction,  mony;  and  when  the  facts  are  desired 

'to   keep   it  within   its   proper   limits,  to    assist    a    court    of    law    in    the 

and   to   prevent   it   from   encroaching  progress  of  a   case,   it  should  be  af- 

upon   the   jurisdiction   of   the   courts  firmatively    stated    in    the    bill    that 

•of  common  law.     The  rule  to  be  ap-  they  are   wanted  for  such   purpose." 

plied  to  a  bill  seeking  for  discovery  This   was   a   case   for    discovery   and 

from  an  interested  party  is  that  the  relief. 

■complainant   shall   cliargc   in   his  bill  (b)  In     Buzard     v.     Houston,     119 

that  the  facts  are  known   to  tlie  de-  U.  S.  355,  7   Sup.  Ct.  249,  the  court 

ifeadant,  and  ought  to  be  disclosed  by  said:     "It  Ib  enough  to  say  that  the 


325  DISCOVERY   AS   A   SOURCE   OF   JURISDICTION.  §    230 

1 

§  230.  True  Meaning  of  the  American  Rule. —  By  means 
of  these  two  restrictive  rules,  the  general  expressions  of 
the  American  judges,  before  quoted,  are  very  much  limited, 
and  their  operation  is  brought  within  much  narrower 
bounds.  The  so-called  American  doctrine  concerning  the- 
effect  of  discovery  upon  the  equitable  jurisdiction  is  thu& 
practically  as  follows :  Whenever,  in  a  controversy  purely- 
legal,  depending  upon  legal  interests  and  primary  rights  of 
the  plaintiff,  and  seeking  to  obtain  final  reliefs  which  are 
wholly  legal,  the  plaintiff  prays  for  a  discovery  as  a  pre- 
liminary relief,  and  alleges  and  proves  that  such  a  dis- 
covery is  absolutely  essential  to  the  maintenance  of  hi& 
contention;  that  there  is  no  other  mode  of  obtaining  the 
requisite  proofs  to  sustain  his  cause ;  that  he  is  utterly  un- 
able to  establish  the  issues  on  his  part  by  the  testimony  of 
witnesses,  or  by  any  other  kind  of  evidence  admissible  in 

depends  upon  the  disclosures  of  the  defendant  in  his  answer.  While  the 
defendant  can  be  compelled  to  answer  every  material  averment  and  inter- 
rogatory of  the  bill,  distinctly  and  squarely,  what  he  shall  answer  rests 
within  his  own  conscience.  His  answer  cannot,  for  the  purpose  of  discovers/ 
merely, —  that  is,  considered  merely  as  evidence, —  be  controverted.  If  he  dis- 
tinctly denies  all  the  allegations  of  the  plaintiff,  that  is  the  end  of  the  dis- 
covery, and  as  a  matter  of  necessary  consequence,  an  end  of  the  relief  in  thia- 
class  of  suits.  See  ante,  §§  204,  206;  Russell  v.  Clarke's  Ex'rs,  7  Cranch,, 
69;  Ferguson  v.  Waters,  3  Bibb,  303;  Robinson  v.  Gilbreth,  4  Bibb,  184. 

case  clearly  falls  within  the  state-  913,  8  C.  C.  A.  305,  8  U.  S.  App.  496 ; 
ment  of  Chief  Justice  Marshall :  '  But  Hale  v.  Clarl-:Bon,  23  Gratt.  42 ;  Col- 
this  rule  cannot  be  abused  by  being  lins  v.  Sutton,  94  Va.  127,  26  S.  E. 
employed  as  a  mere  pretext  for  bring-  415.  A  bill  seeking  discovery  should 
ing  causes,  proper  for  a  court  of  law,  not  be  retained  after  the  answer  has 
into  a  court  of  equity.  If  the  answer  denied  the  matter  sought.  Walker 
of  defendant  discloses  nothing,  and  v.  Brown,  58  Fed.  23 ;  Brown  v. 
the  plaintiff  supports  himself  by  Swann,  10  Pet.  497;  Insurance  Co.  v.. 
evidence  in  his  own  possession,  un-  Stanchfield,  1  Dill.  424.  Of  course,, 
aided  by  the  confessions  of  defend-  if  the  bill  is  brought  for  discovery 
ant,  the  established  rules  limiting  and  equitable  relief,  it  may  be  re- 
jurisdiction  require  that  he  should  tained  for  the  latter  purpose  when! 
be  dismissed  from  the  court  of  chan-  the  first  purpose  fails,  if  it  states- 
eery,  and  permitted  to  assert  bis  a  case  calling  for  the  exercise  of 
rights  in  a  court  of  law."  See  also  equitable  jurisdiction.  Bouton  v. 
Cecil  Nat.  Bank  v.  Thurber,  59  Fed.  Smith,  112  111.  48  L 


:§    230  EQUITY   JURISPRUDENCE.  326 

■courts  of  law, —  so  that  an  action  at  law  is  utterly  imprac- 
ticable ;  and  whenever,  in  such  case,  the  defendant  does  not 
wholly  deny  the  facts  which  the  plaintiff  alleges  as  the  basis 
of  his  recovery,  but  makes  an  actual  discovery  by  his  an- 
swer disclosing  a  right  of  action. in  the  plaintiff, —  then  the 
court  of  equity  having  jurisdiction  of  such  a  case  to  compel 
a  discovery  acquires  a  jurisdiction  over  it  for  all  purposes, 
and  may  go  on  and  determine  all  the  issues,  and  decree  full 
and  final  relief,  although  the  relief  so  given  is  of  the  same 
kind  as  that  granted  by  courts  of  law  in  similar  contro- 
versies.^ ^  It  is  plain,  therefore,  that  the  doctrine  thus 
narrowed  rests  solely  upon  the  essential  fact  that  the  suc- 
cessful prosecution  of  an  action  at  law,  and  the  recovery  by 
the  plaintiff  of  the  reliefs  to  which  he  is  justly  entitled  in 
a  court  of  law,  are  rendered  wholly  impossible  by  the  opera- 
tion of  the  arbitrary  rules  of  the  law  concerning  the  exam- 
ination of  witnesses,  the  testimony  of  the  parties  them- 
rselves,  and  the  production  of  evidence  generally.^     The 

1  Gelston  v.  Hoyt,  1  Johns.  Ch.  543 ;  Seymour  v.  Seymour,  4  Johns.  Ch.  409 ; 
Rathbone  v.  Warren,  10  Johns.  587,  596;  Shepard  v.  Sanford,  3  Barb.  Ch. 
127;  Sanborn  v.  Kittrcdge,  20  Vt.  632,  50  Am.  Dec.  58;  Holmes  v.  Holmes,  36 
Tt.  525;  Traip  v.  Gould,  15  Me.  82;  Isham  v.  Gilbert,  3  Conn.  166;  Mid- 
■dletown  Bank  v.  Russ,  3  Conn.  135,  139,  8  Am.  Dec.  164;  Bank  of  U.  S.  v. 
Eiddle,  2  Pars.  Cas.  31;  Lyons  v.  Miller,  6  Gratt.  427,  438,  52  Am.  Dec. 
129;  Duvals  v.  Ros3,  2  Munf.  290,  296;  Stacy  v.  Pearson,  3  Rich.  Eq.  148, 
152;  Sims  v.  Aughtery,  4  Strob.  Eq.  103,  121;  Brooks  v.  Stolley,  3  McLean, 
B23;  Warner  v.  Daniels,  1  Wood.  &  M.  90;  Foster  v.  Swasey,  2  Wood.  &  M. 
217;  Russell  v.  Clark,  7  Cranch,  69. 

2  It  should  be  remembered  that  at  the  time  when  this  equity  doctrine 
was  established  the  rules  of  the  law  concerning  evidence  were  extremely 
arbitrary,  and  productive  of  great  injustice.  Actions  at  law  based  upon 
the  plainest  right  might  frequently  fail  from  the  impossibility  of  proving 
the  facts  in  conformity  with  the  legal  rules  of  evidence.  Not  only  were 
parties  to  actions  unable  to  testify  for  themselves  or  for  their  opponents,  but 
all  persons  having  any  pecuniary  interest  in  the  event  of  the  action  were 
disabled ;  the  door  was  closed  against  the  admission  of  the  truth  from  many 
directions.  An  appeal  to  the  powers  of  equity  to  compel  a  discovery  from 
the  opposite  party  was  therefore  the  only  possible  mode  in  very  many  in- 
Btancea  of  eliciting  the  facts  which  would  make  out  the  plaintiff's  cause  of 

(a)  Quoted  in  Virginia  A  A.  Min.       South.  256.     Cited  in  Wood  v.  Hud- 
.A  Mfg.   Co.  V.   Hale,   93   Ala.   542,  9       son,  96  Ala.  469,   11  South.  530. 


327  DISCOVERY    AS   A    SOURCE    OF    JURISDICTION.  §    230 

question  then  arises,  What  effect  has  been  produced  upon 
this  particular  doctrine  by  the  modern  legislation,  which 
authorizes  the  examination  of  parties  on  the  trial  of  actions, 
abolishes  the  disabilities  of  witnesses,  and  removes  the 
other  legal  restrictions  upon  the  admissibility  of  evidence? 
In  my  opinion,  the  necessary  effect  of  such  legislation  has 
been  to  abrogate  the  doctrine  altogether,  even  in  those 
states  where  "  discovery  "  is  still  retained.  In  fact,  the 
foundation  upon  which  this  peculiar  American  doctrine 
concerning  the  effect  of  discovery  in  the  classes  of  cases 
above  described  was  rested  by  the  courts,  has  been  wholly 
swept  away  by  these  reformatory  statutes.  It  is  simply 
impossible  for  a  plaintiff  now  to  allege  with  truth,  and  of 
course  impossible  for  him  to  prove  in  any  controversy  legal 
in  its  nature,  that  a  discovery  by  means  of  a  suit  in  equity 
is  esseo^tial  to  his  maintaining  his  cause  of  action,  and  that 
he  is  unable  to  establish  the  issues  on  his  part  by  the  testi- 
mony of  witnesses,  and  by  other  evidence  admissible  in 
courts  of  law.  If  a  plaintiff  has  a  legal  cause  of  action,  and 
can  substantiate  it  by  means  of  a  discovery  obtained  from 
his  opponent  in  equity,  then  it  must  necessarily  follow  that 

action  in  suits  of  a  purely  legal  nature.  It  is  true,  there  was  no  absolute 
necessity  of  allowing  the  equity  court  to  go  on  and  decide  the  whole  cause 
after  a  discovery  was  made.  In  such  cases,  as  well  as  in  all  others  where  a 
Beparate  bill  of  discovery  had  been  filed,  after  the  discovery  was  made  the 
plaintiff  might  return  to  a  court  of  law,  prosecute  his  legal  action  in  that 
tribunal,  and  use  the  defendant's  answer  containing  the  discovery  as  evi- 
dence to  support  his  own  side  on  the  trial  of  that  action.  This  latter  practice 
became  finally  settled  in  England,  as  has  already  been  shown.  The  other 
practice  of  the  equity  courts  in  this  country,  in  assuming  jurisdiction  to 
decide  the  entire  issues,  and  to  decree  complete  relief,  where  a  discovery  had 
actually  been  made  in  cases  which  could  not  have  been  tried  at  law  without 
Buch  discovery,  was  doubtless  adopted  from  motives  of  policy  and  of  benefit 
to  the  parties  themselves,  since  they  were  thereby  saved  from  the  labor, 
time,  and  expense  of  a  second  action  and  trial  at  law,  after  they  had  already 
in  effect  tried  the  entire  matters  in  difference  between  them.  Still  the  doc- 
trine deprived  parties  of  their  right  to  a  jury  trial,  under  circumstances  which 
did  not  render  such  deprivation  at  all  necessary.  After  a  discovery  was 
once  obtained,  a  trial  of  the  issues  at  law  by  a  jury  was  as  practicable  as  in 
any  other  kinds  of  legal  controversies. 


§    230  EQUITY   JURISPRUDENCE.  328 

he  can  substantiate  it  on  the  trial  of  the  same  controversy 
at  law  by  means  of  the  examination  of  his  opponent  as  a 
witness;  and  furthermore,  he  can  examine  on  the  trial  at 
•  law  all  other  persons  whose  testimony  is  material.  In 
short,  the  plaintiff's  allegations  that  he  has  a  legal  cause 
of  action,  and  that  he  can  sustain  it  by  means  of  a  discovery, 
made  by  the  defendant,  of  facts  within  the  latter 's  own 
knowledge,  would,  of  necessity,  show  that  he  could  main- 
tain the  same  cause  of  action  at  law,  by  means  of  the  testi- 
mony which  the  defendant  could  be  compelled  to  give  as  a 
witness  on  the  trial  thereof  in  a  court  of  law.  It  is  true 
that  the  prin<?iple  is  well  settled  that  when  a  court  of  equity 
had  jurisdiction  over  a  certain  subject-matter,  it  does  not 
lose  such  jurisdiction  when  courts  of  law  have  subsequently 
acquired  the  same  jurisdiction.  In  my  opinion,  the  matter 
under  consideration  does  not  come  within  the  operation  of 
this  principle.  It  is  not  the  case  of  a  jurisdiction  held  by 
courts  of  equity  which  courts  of  law  did  not  originally 
possess,  but  have  now  obtained.  By  the  very  assumption^ 
the  controversy,  the  cause  of  action,  and  the  reliefs  de- 
manded are  all  legal  in  their  nature;  courts  of  law  alwaj^s 
had  jurisdiction  over  them.  The  only  difficulty  was,  that 
by  reason  of  certain  arbitrary  rules  of  law  concerning  evi- 
dence, the  jurisdiction  of  the  law  courts  over  this  particular 
class  of  legal  controversies  could  not  be  exercised  so  as  to 
do  full  justice,  until  the  defective  legal  rules  of  evidence 
had  been  aided  or  supplemented  by  means  of  a  discovery  in 
equity ;  when  this  discovery  was  once  made,  and  the  proper 
evidence  was  thereby  obtained,  the  jurisdiction  at  law  could 
then  be  exercised,  and  complete  justice  could  be  done  by  its 
trial  and  judgment,  as  much  as  in  any  other  legal  contro- 
versies. Since  the  particular  equity  doctrine  under  discus- 
sion arose,  not  from  the  absence  of  a  jurisdiction  at  law, 
but  morely  from  certain  hindrances  to  its  useful  exercise, 
and  since  this  doctrine  depended  for  its  existence  and 
operation  upon  certain  rules  of  evidence,  it  is  not,  in  my 


329  JURISDICTION    EMBRACES    WHOLE    MATTEB.  §    231 

opinion,  embraced  within  the  protection  of  the  general  prin- 
ciple as  to  jurisdiction  quoted  above ;  it  seems  to  me  to  have 
been  necessarily  abrogated  by  the  sweeping  changes 
effected  in  the  legal  rules  of  evidence  by  modern  statutes.* 


SECTION  ni. 

THE  DOCTRINE  THAT  JURISDICTION  EXISTING  OVER  SOME 
PORTION  OR  INCIDENT  EXTENDS  TO  AND  EMBRACES  THE 
WHOLE  SUBJECT-MATTER  OR  CONTROVERSY. 

ANALYSIS. 

§  231.  The  doctrine  as  applied  in  the  concurrent  jurisdiction. 

§  232.  As  applied  in  the  exclusive  jurisdiction. 

§  233.  Limitations  on  the  doctrine. 
S§  234-241.  Illustrations  of  the  doctrine. 

§  234.  In  cases  of  discovery. 

§  235.  In  cases  of  administration. 

§  236.  In  cases  of  injunction. 

§  237.  In  cases  of  waste,  nuisance,  damages. 
|{  238-241.  In  various  other  cases. 

§  242.  Effect  of  the  reformed  procedure  on  the  doctrine. 

§  231.  As  Applied  to  the  Concurrent  Jurisdiction. —  The  rule 
has  already  been  stated,  as  one  of  the  foundations  of  the 
concurrent  jurisdiction,  that  where  a  court  of  equity  has 
obtained  jurisdiction  over  some  portion  or  feature  of  a  con- 
troversy, it  may,  and  will  in  general,  proceed  to  decide  the 
whole  issues,  and  to  award  complete  relief,  although  the 

S  Miller  v.  Scammon,  52  N.  H.  609,  610,  which  fully  supports  these  con- 
clusions.b  It  is  true  that  it  has  been  held  in  some  states  that  the 
jurisdiction  of  equity  to  entertain  "  bills  of  discovery,"  properly  so 
called,  has  not  been  abrogated  by  the  legislation  in  question.  But  assum- 
ing that  these  decisions  are  correct,  they  do  not,  as  it  seems  to  me,  determine 
the  present  question.  Equity  had  a  well-settled,  independent  jurisdiction 
to  entertain  "  bills  for  discovery,"  technically  so  called.  This  jurisdiction 
had  existed  from  the  earliest  periods  of  the  English  court  of  chancery;  it 
was  exclusive;  the  law  courts  had  no  such  power.  Even  the  modern  legis- 
lation has  not  conferred  upon  the  law  courts  a  jurisdiction  to  entertain  any 
such  suits,  but  has  only  removed  the  disabilities  which  prevented  parties  and 

(b)  See  also  §  302. 


§    232  EQUITY   JURISPRUDENCE.  330 

rights  of  the  parties  are  strictly  legal,  and  the  final  remedy 
granted  is  of  the  kind  which  might  be  conferred  by  a  court 
of  law/ '  This  principle  is,  however,  of  much  wider  appli- 
cation, extending  in  its  operation  to  both  the  concurrent  and 
the  exclusive  jurisdictions;  and  it  requires,  therefore,  a 
more  full  discussion.  In  its  application  to  the  concurrent 
jurisdiction,  this  principle  forms,  as  has  been  already 
shown,  one  of  the  very  foundations  upon  which  that  juris- 
diction sometimes  rests ;  and  it  is  then  something  more  than 
merely  an  occasion  or  condition  of  fact  for  the  proper  exer- 
cise of  the  jurisdiction.  In  other  words,  where  the  primary 
rights  and  cause  of  action  of  the  complaining  party  are 
legal,  and  the  remedy  which  he  asks  and  obtains  is  of  the 
kind  given  by  courts  of  law,  the  concurrent  jurisdiction 
of  equity  to  interfere  and  adjudicate  upon  the  controversy 
may  exist  by  virtue  of  this  principle;  it  may  alone  deter- 
mine the  inadequacy  of  legal  remedies  upon  which  the  very 
existence  of  the  concurrent  jurisdiction  always  depends. 
It  may  be  remarked  that  the  instances  in  which  the  core 
current  jurisdiction  results  from  the  operation  of  this  prin- 
ciple, at  least  in  the  United  States,  are  most  frequently 
cases  of  accounting  or  of  discovery  followed  by  relief.^*' 
§  232.  As  Applied  in  the  Exclusive  Jurisdiction. —  The  prin- 
ciple is  also  frequently  applied  in  cases  belonging  to  the  ex- 
other  persons  from  testifying  on  trials  of  actions.  It  may  well,  then,  be 
argued,  and  perhaps  held,  that  a  particular  jurisdiction  which  had  belonged 
to  chancery  courts  from  tlieir  earliest  periods  had  not  been  impliedly  abolished 
by  statutes  whoso  only  express  object  was  to  alter  certain  rules  of  evidence. 
Tlie  doctrine  discussed  in  the  text,  on  the  other  hand,  has  no  foundation  nor 
existence,  except  as  a  special  result  of  those  ancient  rules  of  evidence  which 
the  statute  has  clianged.  Deduced  as  a  direct  consequence  from  those  pro- 
hibitory rules,  it  mxist,  as  it  seems  to  me,  fall  with  thenu 

1  See  ante,  §  181. 

2  See  cases  cited  ante,  under  §  181. 

(a)  Quoted       in       Carmichael      v.  ion)  ;  Collier  v.  Collier   (N.  J.  Eq.), 

Adams,  91   Ind.  526.     Cited  in   Field  33  Atl.  193. 

V.    Ilolzman,    93    Ind.    205;    Freer   v.  (b)  Quoted  in  Kansas  City  N.  W. 

Davis,  52  VV.  Va.  1,  43  S.  E.  104,  94  R.  R.  Co.  v.  Caton,  9  Kan.  App.  272, 

Am.    St.    Rep.   895    (dissenting   opin-  60  Pac.  644. 


331  JUEISDICTION    EMBRACES    WHOLE    MATTEB.  §    233 

•elusive  jurisdiction,  and  it  then  furnishes  an  occasion  for 
the  proper  exercise  of  that  jurisdiction  by  the  granting  of 
complete  final  relief  which  is  purely  equitable  in  its  nature. 
In  such  instances,  where  the  primary  rights  and  interests 
of  the  complaining  party  are  legal,  and  the  court  has  juris- 
diction over  some  part  of  the  controversy,  or  to  grant  some 
partial  or  incidental  equitable  relief,  it  may,  under  the  oper- 
ation of  this  principle,  and  generally  will,  go  on  and  decide 
all  the  issues,  and  award  the  final  equitable  relief  which  is 
necessary  to  meet  the  ends  of  justice,  and  which  belongs  to 
the  exclusive  jurisdiction  of  the  court.^  While,  therefore, 
the  same  general  doctrine,  expressed  in  the  same  formula, 
is  equally  applicable  to  cases  of  the  concurrent  and  of  the 
exclusive  jurisdiction,  yet  its  operation,  as  furnishing  a 
ground  for  the  judicial  action,  is  very  different  in  the  two 
jurisdictions. 

§  233.  Limitations. —  This  principle  is  not,  however,  uni- 
versal in  its  application,  either  to  the  concurrent  or  to  the 
exclusive  jurisdiction.  The  following  is  an  illustration  of 
the  limitation :  A  statute  of  Mississippi  gave  special  power 
to  the  court  of  chancery  to  entertain  suits  to  remove  a  cloud 
from  title  of  land,  where,  after  the  cloud  was  removed,  all 
the  right  and  estate  of  the  parties  would  be  strictly  legal, 
and  the  further  remedies  of  the  plaintiff  would  be  such  as 

1  Jesus  College  v.  Bloom,  3  Atk.  262,  203,  Arab.  54;  Yates  v.  Hambly,  2 
Atk.  237,  360;  Ryle  v.  Haggle,  1  Jacob  &  W.  234,  237;  Corp'n  of  Carlisle  v. 
Wilson,  13  Ves.  276,  278,  279;  Adley  v.  Whitstable  Co.,  17  Ves.  315,  324; 
McKenzie  v.  Johnston,  4  Madd.  373;  Eathbone  v.  Warren,  10  Johns.  587, 
696;  King  v.  Baldwin,  17  Johns.  384,  8  Am.  Dec.  415;  Cornelius  v.  Morrow, 
12  Heisk.  630;  Farrar  v.  Payne,  73  111.  82,  91;  Pratt  v.  Northam,  5  Mason,  95, 
105;  Thompson  v.  Brown,  4  Johns.  Ch.  619,  631-043;  Walker  v.  Morris,  14 
Ga,  323,  325;  Handley's  Ex'r  v.  Fitzhugh,  1  A.  K.  Marsh.  24;  Keeton  v. 
Spradling,  13  Mo.  321,  323;  State  of  Mo.  v.  McKay,  43  Mo.  594,  598;  Souder's 
Appeal,  57  Pa.  St.  498,  502;  Sanborn  v.  Kittredge,  20  Vt.  632,  630,  50  Am. 
Dec.  58;  Zetelle  v.  Myers,  19  Gratt.  62,  67;  Ferguson  v.  Waters,  3  Bibb,  303; 
Middletown  B'k  v.  Russ,  3  Conn.  135,  140,  8  Am.  Dec.  164;  Isham  v.  Gilbert, 
3  Am.  Dec.  166,  170,  171;  Armstrong  v.  Gilchrist,  2  Johns.  Cas.  424,  430,  431; 
Hawley  v.  Cramer,  4  Cow.  717;  Oelrichs  v.  Spain,  15  Wall.  211,  228;  Clarke 
V.  White,  12  Pet.  178,  187,  188;  Hepburn  v.  Dimlop,  1  Wheat.  179,  197;  Phelps 
V.  Harris,  51  Miss.  789,  794;  Ezelle  v.  Parker,  41  Miss.  520,  526,  527. 


§    233  EQUITY   JURISPRUDENCE.  332 

are  always  obtainable  by  an  action  of  ejectment,  or  an  ac- 
tion for  use  and  occupation.^  It  has  been  held  that  in  an 
equitable  suit  brought  under  this  statute,  in  order  to  remove 
a  cloud,  the  court  did  not  obtain  jurisdiction  to  go  on  and 
decide  conflicting  claims  to  the  purely  legal  estate  in  the 
land,  or  award  possession,  or  a  recovery  of  rents  and  profits, 
all  of  which  belonged  to  the  cognizance  of  a  court  of  law 
in  an  action  of  ejectment.^  From  these  cases,  the  rule  would 
seem  to  result,  that  wherever  a  special  power,  not  existing 
as  a  part  of  the  general  jurisdiction,  is  conferred  by  statute 
to  grant  some  particular,  specified,  equitable  remedy,  the 
exercise  of  this  statutory  power,  in  a  suit  brought  for  that 
purpose,  does  not  draw  after  it  the  additional  power  to  de- 
cide the  remaining  portions  of  a  controversy  which  are 
purely  legal,  and  to  determine  rights  and  award  remedies^ 
which  belong  specially  to  the  cognizance  of  the  law  courts, — 
such,  for  example,  as  conflicting  legal  titles  to  tracts  of  land,, 
and  recovery  of  possession,  or  of  rents  and  profits.* 

1  Miss.  Rev.  Code,  p.  541,  art.  8. 

2  Phelps  V.  Harris,  51  Miss.  789,  794;  Ezelle  v.  Parker,  41  Miss.  520,  526, 
527.  In  the  former  of  these  cases,  after  stating  the  objects  of  such  suits, 
and  what  the  plaintiff  must  show,  and  that  under  form  of  such  suits  a  court 
of  equity  cannot  assume  jurisdiction  to  try  mere  conflicting  legal  titles  to- 
land,  Peyton,  C.  J.,  says  (p.  794)  :  "Hence  the  jurisdiction  to  remove  clouds, 
doubts,  and  suspicions  from  over  the  title  of  the  rightful  owner  of  real  estate- 
conferred  by  the  statute  upon  the  court  of  chancery,  does  not,  as  an  incident 
to  it,  authorize  that  court  to  take  jurisdiction  of  the  whole  controversy  in 
relation  to  the  title  to  the  land,  the  right  of  possession,  the  rents,  issues,  and 
profits,  and  thus  usurp  the  jurisdiction  belonging  to  the  courts  of  law."  In 
Ezelle  v.  Parker,  41  Miss.  520,  Mrs.  Parker,  a  married  woman,  had,  by  her 
own  separate  deed,  in  which  her  husband  did  not  join,  conveyed  land  owned 
by  her  to  Ezelle,  who  had  paid  for  it  in  confederate  money,  and  was  in  pos- 
Bession.  Mrs.  P.  and  her  husband  sued  in  equity  to  cancel  such  deed  as  a 
cloud  upon  Mrs.  P.'s  title,  and  to  recover  possession  of  the  land,  and  for  an' 

(a)  The    principle    appears    to    be  retain  the  cause  as  a  matter  of  right,, 

much  more  sparingly  applied  by  the  for  the  purpose  of  complete  relief." 

courts   of    New    Jersey    than    by    the  Brown   v.   Edsall,   9   N.   J.   Eq.   257; 

courts   of    other    states;    thus,    it   la  Lodor  v.  McGovern,  48  N.  J.  Eq.  275,. 

stated  that  "a  count  of  chancery  in  27   Am.    St.   Rep.    440,   22   Atl.    199; 

this  state  has  never  adopted  the  prin-  Collier  v.  Collier  (N.  J.  Eq.),  33  Atl.. 

ciple    that,    because    its    jurisdiction  193. 
has  once  rightfully  altaclicd,  it  will 


•333  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    234 

§  234.  Illustrations. —  In  order  to  illustrate  the  operation 
of  the  general  principle,  and  to  show  the  variety  and  extent 
of  the  cases  in  which  it  has  been  applied,  I  add  a  consider- 
able number  of  examples,  most  of  which  are  taken  from 
American  decisions.  Where  a  plaintiff  has  demanded  and 
obtained  a  discovery  under  the  circumstances  described  in 
preceding  paragraphs,  it  is  well  settled  that  the  court  will 
go  on  and  decide  the  whole  controversy  and  grant  final  relief 
in  cases  involving  fraud  or  mistake,  and  in  those  where  the 
relief  consists  in  an  accounting  and  payment  or  distribution, 
if  the  case  possesses  some  equitable  incident  or  feature 
which  might  have  brought  it  within  either  branch  of  the 
equitable  jurisdiction,  independent  of  the  fact  of  a  discov- 
ery.^ How  far  some  American  courts  have  gone  beyond 
this  limit,  and  have  assumed  to  apply  the  principle  and  to 
decide  all  the  issues,  after  a  discovery,  in  cases  possessing 
no  other  equitable  feature  or  incident,  has  already  been 
fully  described.^  The  particular  remedy  of  a  discovery  is 
also,  to  some  extent  at  least,  the  foundation  of  the  estab- 
lished jurisdiction  of  equity  over  the  administration  of  the 
personal  estates  of  deceased  persons.  It  has  frequently 
been  held  that  where  a  creditor,  or  a  legatee,  or  a  distributee 
brought  a  suit  in  equity  to  obtain  a  discovery  of  assets  in 
the  hands  of  the  personal  representatives,  the  courts  having 
thus  obtained  a  jurisdiction  of  the  matter  for  this  special 
purpose,  would  go  on  and  make  a  full  decree  of  administra- 

account  of  the  rents  and  profits.  Held,  that  the  court  would  set  aside  the 
deed  as  a  cloud,  but  could  not  go  on  and  decree  a  recovery  of  possession  and 
payment  of  the  rents  and  profits.  The  latter  relief  could  be  obtained  only  by 
an  action  at  law. 

1  Handley's  Ex'r  v.  Fitzhugh,  1  A.  K.  Marsh.  24 ;  Sanborn  v.  Kittredge, 
20  Vt.  632,  636,  50  Am.  Dec.  58;  Chichester's  Ex'r  v.  Vass's  Adm'r,  1  Munf. 
98,  4  Am.  Dec.  531;  Furguson  v.  Waters,  3  Bibb,  303;  Middletown  Bk.  v. 
Euss,  3  Conn.  135,  140,  8  Am.  Dec.  164;  Isham  v.  Gilbert,  3  Conn.  166,  170, 
171;  Armstrong  v.  Gilchrist,  2  Johns.  Cas.  424,  430,  431;  Hawley  v.  Cramer, 
4  Cow.  717,  728;  but  see  Little  v.  Cooper,  10  N.  J.  Eq.  273,  275;  Brown  v. 
Edsall,  9  N.  J.  Eq.  256.    And  see  ante,  §§  224-226. 

2  See  ante,  §§  227-229. 


§    235  EQUITY    JURISPRUDENCE.  334- 

tion,  of  accounting  from  the  executors  or  administrators, 
and  of  final  settlement  and  distribution.^  * 

§  235.  Although  the  legislation  of  most  of  the  states 
has  either  expressly  or  practically  taken  the  general  juris- 
diction of  administration  from  the  courts  of  equity,  and  has 
conferred  it  upon  courts  of  probate  under  minute  statutory 
regulation,  still,  whenever  a  court  of  equity  takes  cogni- 
zance of  a  decedent's  estate  for  any  special  purpose,  or  to^ 
grant  any  special  relief  not  within  the  power  of  the  probate 
court,  such  as  the  construction  of  a  will,  the  setting  aside 
of  some  fraudulent  transaction  of  an  executor  or  adminis- 
trator, the  restraining  of  an  executor's  or  administrator's 
wrongful  acts  by  injunction,  and  the  like,  it  has  been  held  in 
many  states  that  the  court  of  equity,  having  thus  acquired 
a  jurisdiction  of  the  estate  for  this  particular  purpose,  may 
and  should,  notwithstanding  the  statutory  system,  go  on 
and  decree  a  complete  administration,  settlement,  and  dis- 
tribution of  the  entire  estate,  in  the  same  manner  in  which 
it  would  have  proceeded  under  the  original  jurisdiction  of 

3  Pratt  V.  Northam,  5  Mason,  95,  105;  Yates  v.  Hambly,  2  Atk.  237,  360; 
Jesus  College  v.  Bloom,  3  Atk.  262,  263,  per  Lord  Hardwicke;  Thompson 
V.  Brown,  4  Johns.  Ch.  619,  631,  643;  Pearson  v.  Darrington,  21  Ala.  169; 
Walker  v,  Morris,  14  Ga.  323,  325;  Martin  v.  Tidwell,  36  Ga.  332,  345; 
Keeton  v.  Spradling,  13  Mo.  321,  323;  Gilliam  v.  Chancellor,  43  Miss.  437, 
448,  5  Am.  Rep.  498.  In  Pratt  v.  Northam,  5  Mason,  95,  Story,  J.,  held  that 
the  United  States  circuit  court,  as  a  court  of  equity,  has  jurisdiction  in  a 
suit  by  a  legatee  or  distributee  against  an  executor  or  administrator  for  an 
administration  and  settlement  of  the  estate,  under  the  established  general 
authority  of  chancery,  notwithstanding  any  local  state  legislation  on  the- 
subject.  As  to  the  origin  of  this  jurisdiction  of  chancery,  he  said  (page  105)  : 
"  The  original  ground  seems  to  have  been  that  a  creditor,  or  other  party  in 
interest,  had  a  right  to  come  into  chancery  for  a  discovery  of  assets,  and 
being  once  rightfully  there,  he  should  not  be  turned  over  to  a  suit  at  law 
for  final  redress.  For  purposes  of  complete  justice,  it  became  necessary  to 
conduct  the  whole  administration  and  distribution  of  assets  under  the  super- 
intendence of  the  court  of  chancery,  when  it  once  interfered  to  grant  relief 
in  such  cases." 

(a)  Tlie  text  is  cited  in  Sanders  v.  Soutter,  126  N.  Y.  193,  27  N.  E. 
2R3. 


335  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    235 

chancery  prior  to  the  legislation.^'*  In  some  of  the  states 
this  power  of  a  court  of  equity  to  go  on  and  control  the 
entire  administration  of  the  estate  and  decree  a  final  settle- 
ment and  distribution,  whenever  it  has  thus  obtained  a  juris- 
diction for  some  special  purpose,  is  doubtless  limited  or 
prohibited  by  the  statutes.  The  language  of  the  statute  con- 
ferring general  power  over  the  whole  subject  of  adminis- 
tration upon  the  probate  court  is  so  broad,  minute,  and  per- 
emptory that  the  general  powers  and  jurisdiction  originally 
belonging  to  chancery  over  the  settlement  of  decedents'  es- 
tates are  completely  taken  away,  and  are  wholly  transferred 
into  the  exclusive  cognizance  of  the  probate  court,  and  are 
exercised  by  it  in  accordance  with  the  minute  and  compul- 

1  Cowles  V.  Pollard,  51  Ala.  445,  447;  Youmans  v,  Youmans,  26  N.  J. 
Eq.  149,  154;  Pearson  v.  Darrington,  21  Ala.  169;  Walker  v.  Morris,  14  Ga. 
323,  325;  Martin  v.  Tidwell,  36  Ga.  332,  345;  Keeton  v.  Spradling,  13  Mo. 
321,  323;  Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5  Am.  Rep.  498.  Cowles 
V.  Pollard,  51  Ala.  445,  is  a  very  important  case  in  its  bearing  upon  the 
statutory  system  which  exists  in  many  states.  Peters,  C.  J.,  said  (p.  447)  : 
"  It  is  now  well  settled  in  this  state  that  when  the  trusts  of  a  will  are  doubt- 
ful, or  the  personal  representative  may  have  difficulty  or  be  embarrassed 
in  the  execution  of  such  trusts,  a  court  of  equity  will  at  his  instance  take 
jurisdiction  to  construe  the  will,  and  to  aid  and  direct  the  executor  or  ad- 
ministrator in  the  performance  of  his  duties:  Sellers  v.  Sellers,  35  Ala.  235; 
Trotter  v.  Blocker,  6  Port.  269.  And  when  a  court  of  chancery  once  takes 
jurisdiction  on  any  ground  of  equitable  interposition,  the  cause  will  be  re- 
tained, and  the  administration  will  be  conducted  and  finally  settled  in  that 
court:  Stewart  v.  Stewart,  31  Ala.  207;  Wilson  v.  Crook,  17  Ala.  59;  Hunley 
V.  Himley,  15  Ala.  91.  In  such  a  suit  the  chancellor  will  apply  the  law  regu- 
lating the  conduct  and  settlement  of  administrations  in  the  court  of  probate, 
but  he  will  proceed  according  to  the  rules  and  practice  of  a  court  of  equity: 
Hall  v.  Wilson,  14  Ala.  295;  Taliaferro  v.  Brown,  11  Ala.  702."  In  Youmana 
T.  Youmans,  26  N.  J.  Eq.  149,  154,  it  was  also  held  that,  in  a  suit  to  con- 
strue a  will  and  for  directions  to  the  executor,  all  parties  interested  being 
joined,  the  court  would  go  on  and  adjust  and  finally  settle  the  accounts  of 
the  executor;  citing  Mallory  v.  Craige,  15  N.  J.  Eq.  73,    In  Keeton  v.  Sprad- 

(a)  The  text  is  cited  and  followed  and  can  only  be  obtained  from  a  court 

in  Sanders  v.  Soutter,  126  N.  Y.  193,  of    equity;    and    that    in    an    action 

27  N.  E.  263.    It  was  there  held  that  brought  for  such  purpose  the  court, 

a  surrogate's  court  has  no  power  to  in  the  exercise  of  its  concurrent  juris- 

annul  or  set  aside,  on  the  ground  of  diction    with    the    surrogate's    court, 

fraud,  a  release  executed  by  parties  may  grant  full  relief,  and  decree  an 

interested   in   an   estate   to   the   exec-  accounting  by   executors,   and   a   set- 

utora  thereof;   that  such   relief  may  tlement  and  distribution  of  the  estate. 


§    236  EQUITY   JURISPEUDENCE.  336 

sory  provisions  of  a  statutory  system.  In  these  states,  and 
by  virtue  of  these  statutes,  if  a  court  of  equity  obtains  juris- 
diction over  the  subject-matter  of  a  decedent's  estate  for 
any  special  purpose  not  within  the  competency  of  the  pro- 
bate court,  such  as  the  construction  of  a  will^  the  control  and 
enforcement  of  a  trust,  the  cancellation  of  some  fraudulent 
conveyance  made  by  an  executor  or  administrator,  and 
the  like,  its  functions  will  be  limited  to  matters  which  are 
necessary  to  render  this  special  relief  complete  and  effect- 
ual ;  it  will  not  be  allowed  to  go  on  to  a  full  and  final  admin- 
istration and  settlement  of  the  estate  as  a  whole.  Such  ad- 
ministration and  settlement,  after  receiving  the  aid  of  the 
special  relief  furnished  by  the  decree  in  equity,  can  be  ac- 
complished by  the  probate  court  alone,  to  whose  exclusive 
cognizance  they  have  been  intrusted  by  the  statute.^ 

§  236.  Another  extensive  class  of  cases  in  which  the  prin- 
ciple has  been  applied  embraces  suits  brought  to  enjoin  the 
further  prosecution  of  a  pending  action  at  law,  or  the  en- 

ling,  13  Mo.  321,  323,  the  suit  was  brovight  by  next  of  kin  to  set  aside 
a  decree  of  the  court  of  probate  obtained  by  the  administrator  through 
fraud,  and  the  court  held  that  having  obtained  jurisdiction  for  this  particu- 
lar purpose,  it  would  go  on  and  give  full  relief  by  a  final  decree  for  an  ac- 
counting by  the  administrator,  settlement  of  the  estate,  and  distribution  of 
the  assets.  Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5  Am.  Rep.  498,  is  also 
a  very  important  decision  respecting  the  equity  powers  under  the  legisla- 
tion concerning  administration.  It  holds  that  the  jurisdiction  given  by  the 
Mississippi  statutes  to  the  probate  court  is  exclusive,  and  the  court  of  chan- 
cery is  thereby  deprived  of  its  original  general  jurisdiction  over  administra- 
tion; citing  Blanton  v.  King,  2  How.  (Miss.)  856;  Carmichael  v.  Browdcr,  3 
How.  (Miss.)  252.  But  where,  as  in  this  case,  a  widow  claimed  under  an  ante- 
nuptial contract  with  her  husband,  and  also  a  legacy  given  by  his  will,  and 
the  executor  insisted  that  the  legacy  was  in  satisfaction  of  the  antenuptial 
portion,  the  court  held  that  equity  had  exclusive  jurisdiction  to  decide  the 
widow's  rights  under  the  antenuptial  agreement;  and  thus  having  jurisdiction 
over  a  portion  of  the  controversy,  the  court  would  decide  all  the  matters  in 
issue  between  her  and  the  executor  growing  out  of  the  will,  and  would  enjoin 
an  action  brought  by  her  in  the  probate  court  to  recover  the  legacy,  and  would 
determine  all  her  rights  and  claims  under  the  will  and  under  the  nuptial 
contract  in  the  one  equity  suit.  The  other  cases  cited  above  all  maintain 
the  doctrine  stated  in  the  text. 

2  Gilliam  v.  CliancelJor,  43  Miss.  437,  448,  5  Am.  Rep.  498,  and  cases  cited. 
This  seems  to  be  the  system  prevailing  in  a  considerable  number  of  states. 


337  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    236 

forcement  of  a  judgment  recovered  at  law,  either  on  the 
ground  of  some  equitable  defense  not  cognizable  by  the  law 
court,  or  on  the  ground  of  some  fraud,  mistake,  ignorance, 
or  other  incident  of  the  trial  at  law,  which  rendered  the 
legal  judgment  inequitable.  In  such  cases  the  court  of 
equity,  having  obtained  jurisdiction  of  the  cause  for  the 
purpose  of  an  injunction,  may  decide  the  whole  controversy 
and  render  a  final  decree,  even  though  all  the  issues  are  legal 
in  their  nature,  capable  of  being  tried  by  a  court  of  law,  and 
the  legal  remedies  therefor  are  adequate.^*    In  fact,  the 

1  Cornelius  v.  Morrow,  12  Heisk.  630;  Mays  v.  Taylor,  7  Ga.  238,  243,  244; 
Rust  V.  Ware,  6  Gratt.  50,  52  Am.  Dec.  100;  Billups  v.  Sears,  5  Gratt.  31, 
37,  38,  50  Am.  Dec.  105;  Parker  v.  Kelly,  10  Smedes  &  M.  184;  Oelrichs  v. 
Spain,  15  Wall.  211,  228.  In  the  very  recent  case  of  Cornelius  v.  Morrow,  12 
Heisk.  630,  which  was  a  suit  to  enjoin  a  judgment  recovered  at  law  by  de- 
fault, on  a  note,  it  was  held  that  where  defendant  at  law  has  a  legal  defense 
available  at  law,  but  not  free  from  difficulty  in  its  establishment,  and  a 
second  defense  wholly  equitable,  he  may  resort  to  equity  at  once,  enjoin  the 
action  or  judgment  at  law,  and  have  all  the  issues  tried  in  the  equity  suit. 
In  Maya  v.  Taylor,  7  Ga.  238,  243,  244,  which  was  a  suit  to  enjoin  a  judg- 
ment at  law  and  the  execution  thereon,  on  the  ground  that  the  judgment 
creditor  had  violated  an  agreement  made  with  the  complainant  (the  judg- 
ment debtor)  concerning  the  issuing  of  an  execution  and  the  enforcement  of 
the  judgment,  the  court  held  that  the  complainant  could  have  had  an  adequate 
remedy  at  law  by  an  action  for  damages  for  the  breach  of  such  agreement, 
but  still,  as  equity  had  jurisdiction  for  the  purpose  of  enjoining  the  execu- 
tion, the  court  would  retain  and  decide  the  whole  cause,  and  grant  full  relief 
to  the  complainant.    It  therefore  decreed  that  defendant  should  repay  all  the 

(a)  Cited  in  Coons  v.  Coons,  95  Va.  justice   of  the   peace,  but  the   court 

434,  28   S.  E.   885,  64  Am.   St.   Rep.  retained  the  case  to  try  the  original 

804;  United  States  Min.  Co.  v.  Law-  cause  of  action,  although  the  amount 

eon,   115  Fed.  1005.     §§  236-240  are  involved   was   less  than   the  limit  of 

cited   in   Hagen  v.   Lyndonville   Nat.  jurisdiction.     In   Coons  v.   Coons,   95 

Bk.,    70    Vt.    543,    556,    67    Am.    St.  Va.    434,    64    Am.    St.    Rep.    804,    28 

Rep.    680,    689,   41    Atl.    1046,    1051.  S.  E.  885,  it  was  held  that  a  bill  to 

See  also  Ducktown,  S.  C.  &  S.  Co.  v.  enjoin  an   award  of  arbitrators  may 

Barnes  (Tenn.),  60  S.  W.  593;  W.  V.  be  retained  for  legal  relief.     Bills  to 

Davidson  Lumber  Co.  v.  Jones  (Tenn.  enjoin   execution   sales   and   writs   of 

Ch.  App.),  62  S.   W.   386;   Hickman  possession    have    been    retained    for 

V.  White   (Tex.  Civ.  App.),  29  S.  W.  full   relief.     Probert  v.  McDonald,   2 

692.    In  Gulf.  C.  &  S.  F.  R.  R.  Co.  v.  S.  D.  495,  51  N.  W.  212,  39  Am.  St. 

Schneider  (Tex.  Civ.  App.),  28  S.  W.  Rep.  796;  Leigh  ton  v.  Young,  52  Fed. 

2C0,  an  injunction  was  issued  against  439,  3   C.  C.  A.   176,   10  U.  S.  App. 

the  enforcement  of  a  judgment  of  a  298,  18  L.  R.  A.  266- 

Vol.  1  —  22 


§    236  EQUITY   JURISPRUDENCE.  338 

rule  is  more  general  still  in  its  operation,  and  extends  to  all 
suits  brought  to  obtain  the  special  relief  of  injunction,  and 
is  not  confined  to  suits  for  the  purpose  of  enjoining  actions 
or  judgments  at  law.  It  may  be  stated  as  a  general  propo- 
sition, that  wherever  the  court  of  equity  has  jurisdiction 
to  grant  the  remedy  of  injunction  for  some  special  pur- 
pose, even  though  the  injunction  covers  only  a  portion  of 
the  controversy,  it  may  go  on  and  decide  all  the  issues, 
and  make  a  final  decree  granting  full  relief.^  ^ 

money  which  had  been  collected  on  the  execution  in  violation  of  the  agree- 
ment. In  Rust  V.  Ware,  6  Gratt.  50,  52  Am.  Dec.  100,  which  was  a  suit  to 
enjoin  a  judgment  at  law  on  ground  of  a  palpable  mistake  by  the  jury  and 
newly  discovered  evidence,  it  was  held  that  as  the  court  had  a  jurisdiction  to 
enjoin  the  judgment,  it  would  retain  and  decide  the  whole  cause  on  the 
merits,  and  not  send  it  back  for  a  new  trial  at  law.  In  Billups  v.  Sears,  5 
Gratt.  31,  37,  38,  50  Am.  Dec.  105,  the  facts  were  similar  and  the  ruling  the 
same. 

2  People  V.  Chicago,  53  111.  424,  428 ;  Armstrong  v.  Gilchrist,  2  Johns.  Gas. 
424,  430,  431;  Jesus  College  v.  Bloom,  3  Atk.  262,  263,  per  Lord  Hardwicke. 
People  V.  Chicago,  53  111.  424,  428,  is  a  strong  case.  A  statute  required  that 
all  the  proceedings  of  the  city  common  council  should  be  published  in  the 
German  newspaper  having  the  largest  circulation.  The  common  comicil  des- 
ignated a  certain  German  newspaper.  The  owners  of  another  paper  claimed 
to  be  entitled,  and  brought  a  suit  in  chancery  against  the  city  officers  and 
the  designated  paper,  praying  an  injimction  and  general  relief.  The  court 
held  "  that  while  there  may  be  grave  doubts  whether  a  court  of  equity  would 
take  jurisdiction  for  the  mere  purpose  of  compelling  the  proper  execution 
of  the  statute  in  question  on  the  part  of  the  common  cotmeil,  yet,  having 
acquired  jurisdiction  for  a  purpose  clearly  within  the  province  of  a  court 
of  chancery, —  that  of  awarding  an  injunction, —  it  may  retain  the  bill  for 
the  purpose  of  ascertaining  and  enforcing  all  the  rights  of  the  parties  properly 
involved  in  the  subject-matter  of  the  controversy."  In  Armstrong  v.  Gilchrist, 
2  Johns.  Cas.  424,  430,  431,  the  general  doctrine  was  thus  stated  by  Rad- 
cliffe,  J.,  and  Kent,  C.  J.    (pp.  430,  431)  :     "The  court  of  chancery,  having 

(b)  Cited  in  Danielson  v.  Gude,  11  Park  In  v.  Co.  v.  To^vn  of  Montclair 
Colo.  87,  17  Pac.  283;  Richi  v.  Chat-  (Colo.),  76  Pac.  1050;  Bessemer  Irr. 
tanooga  Brewing  Co.,  105  Tenn.  651,  Ditch  Co.  v.  Woolley  (Colo.),  76  Pac. 
£8  S.  W.  046;  quoted,  Freer  v.  Davis,  1053.  But  see  Graeff  v.  Felix,  200 
52  W.  Va.  1,  59  L.  R.  A.  556,  43  Pa.  St.  137,  49  Atl.  758,  where  com- 
S.  E.  164,  94  Am.  St.  Rep.  895  (dis-  plainant  sought  to  enjoin  parties 
Hcnting  opinion).  See  also  National  claiming  to  be  water  commissioners 
Dock  &  N.  J.  J.  C.  R.  R.  Co.  v.  Penn.  from  purchasing  land  on  the  ground 
R'y  Co.,  54  N.  J.  Eq.  10,  33  Atl.  219;  tliat  they  were  no  longer  in  office. 
GafTey  v.  Nortliwfstfrn  Mut.  Life  Ins.  The  court  held  that  the  main  pur- 
Co.    (Nebr.),  98  N.  W.  820;  Getheil  pose  of  the  bill  was  to  try  title  to 


339  JUEISDICTION    EMBRACES    WHOLE    MATTER.  §    237 

§  237.  Particular  instances  of  the  operation  of  the  above 
general  rule  concerning  the  remedy  of  injunction  may  be- 
seen  in  the  cases  of  waste  and  of  private  nuisance.  Origi- 
nally the  jurisdiction  over  cases  of  waste  was  confined  to 
courts  of  law ;  the  legal  remedy  by  action  for  damages  was 
regarded  as  adequate,  and  as  the  only  remedy.  The  same 
was  true  of  private  nuisance.  In  time  it  was  felt  that  this 
merely  compensatory  relief  was  insufficient  under  some  cir- 
cumstances, and  that  a  preventive  remedy  was  necessary  to 
the  ends  of  justice.  Equity  therefore  assumed  a  jurisdic- 
tion to  grant  an  injunction  restraining  the  commission  of 
actual  or  threatened  waste;  and  having  obtained  jurisdic- 
tion for  the  purpose  of  awarding  this  special  relief,  which^ 
in  many  instances,  is  not  complete,  the  court  will  retain  the 
cause,  and  decree  full  and  final  relief,  including  damages, 
and  when  necessary,  an  abatement  of  whatever  creates  the 
waste  or  causes  the  nuisance.*  *    The  same  description  will 

acquired  cognizance  of  the  suit  for  the  purpose  of  discovery  or  injunction, 
will,  in  most  cases  of  account,  whenever  it  is  in  full  possession  of  the  merits, 
and  has  sufficient  materials  before  it,  retain  the  suit,  in  order  to  do  full 
justice  between  the  parties,  and  to  prevent  useless  litigation  and  expense." 
In  the  well-known  case  of  Jesus  College  v.  Bloom,  3  Atk.  262,  263,  Lord 
Hardwicke,  speaking  of  the  principle  under  discussion,  said:  "So  in  bills 
for  an  injunction,  the  court  will  make  a  complete  decree,  and  give  the  party 
a  satisfaction,  and  not  oblige  him  to  bring  an  action  at  law  as  well  as  a  bill 
here." 

1  Jesus  College  v.  Bloom,  3  Atk.  262,  263.  This  was  a  suit  for  an  account 
of  waste  and  payment  of  whatever  was  found  due,  no  injunction  being  asked 

office,    and    that    it    would    not    take  subject  of  equitable  cognizance  in  the 

jurisdiction.      "  It   is    quite   true,    as  case    is    found    in    the    contemplated 

held  by  the  learned  judge  below,  that  purchase,   which   is   a   mere    incident 

equity,    having   acquired   jurisdiction  to  the  main  purpose  of  the  bill,  and 

of  a  case,  may  decide  all  matters  in-  is   only   pleaded   inferentially."     And 

cidentally    connected    with    it,    so   as  for  a  similar  instance,  see  Broadis  v. 

to  make  a  final  determination  of  the  Broadis,    86    Fed.    951,    citing    text, 

whole  subject;  but  this  rule  docs  not  §§  231-242. 

extend  to  a  case  where  only  some  in-  (a)  This  section  is  cited  generally 

cidental   matter   is   of   equitable   cog-  in  Robinson  v.  Appleton,  124  111.  278,. 

nizance,  and  thereby  enable  the  court  15   N.   E.   761 ;    In   re  Leeds   Woolen, 

to  draw  in  a  main  subject  of  contro-  Mills,  129  Fed.  922. 

versy  which   has  a  distinct  and  ap-  Injunction    against    Trespass    and 

propriate   legal    remedy   of   its   own.  Waste;     Retaining    Jurisdiction    for 

That  is  the  present  case.     The  only  Damages,  etc. — "  Where  a  bill  shows 


237 


EQUITY   JURISPRUDENCE. 


340 


^pply  to  all  cases  of  private  miisance  in  which  a  court  of 
equity  may  have  jurisdiction  to  interfere  by  injunction.^  ** 
There  are  some  other  instances,  in  addition  to  those  of  in- 
junction, waste,  nuisance,  and  continuous  or  irreparable 
trespass,  where  equity,  having  obtained  jurisdiction  for 

for.  Held,  that  the  suit  could  not  be  maintained  unless  an  injunction  was 
prayed.  Lord  Hardwicke  said  (p.  263)  :  "  Tlie  ground  of  coming  into  this 
court  is  to  stay  waste,  and  not  for  the  satisfaction  for  the  damages,  but  for 
a  prevention  of  the  wrong,  which  courts  of  law  cannot  do  in  those  instances 
where  a  writ  of  prohibition  of  waste  will  not  be  granted.  But  in  all  these 
cases  the  court  has  gone  further,  mainly  upon  the  maxim  of  preventing  a 
multiplicity  of  suits,  which  is  the  reason  that  determines  this  court  in  many 
cases." 

2  Additional  instances  of  nuisance  and  of  waste  will  be  found  in  the  next 
«ubsequent  section  on  preventing  a  multiplicity  of  suits. 


cause  for  equitable  relief  by  injunc- 
tion to  stay  destructive  and  contin- 
uous trespass  in  the  nature  of  waste, 
the  court  will  decree  an  account  and 
satisfaction  for  the  injuries  already 
■done."  U.  S.  v.  Guglard,  79  Fed.  21, 
citing  text,  §§  231-237.  See  also 
Peck  V.  Ayers  &  Lord  Tie  Co.,  53 
C.  C.  A.  551,  lie  Fed.  273,  where  the 
court  retained  the  bill  to  try  title. 
The  principle  applies  to  suits  to  en- 
join continuing  trespasses.  Brown  v. 
Solary,  37  Fla.  102,  19  South.  161; 
Watson  V.  Watson,  45  W.  Va.  290, 
31  S.  E.  939.  But  it  has  been  held 
that  while  the  legislature  may  au- 
thorize an  injunction  against  simple 
acts  of  trespass,  it  cannot  authorize 
the  assessment  of  damages  in  actions 
to  enjoin  such  acts  of  trespass  which 
■would  not  have  come  within  the  cog- 
nizance of  chancery  courts  independ- 
ently of  statute.  Wiggins  v.  Wil- 
liams, 36  Fla.  637,  18  South.  859,  30 
L.  R.  A.  754;  McMillan  v.  Wiley 
(Fla.),  33  South.  992.  The  question 
of  retaining  jurisdiction  to  award 
damagf'H  in  cascB  of  injunction  against 
continuing  trcHpass  is  carefully  ex- 
amined in  Lynch  v.  Metropolitan  El. 
R'y  Co.,  129  N.  Y.  274,  15  L.  R.  A. 
2S7,  26  Am.   St.   Rep.  52.3,  29  N.  E. 


315,  where  it  is  held  that  the  amount 
of  such  damages  does  not  present  an 
issue  upon  which  the  parties  are  en- 
titled to  a  trial  by  jury;  citing  Wil- 
liams v.  New  York  Cent.  R.  R.  Co., 
16  N.  Y.  97,  69  Am.  Dec.  651;  Hen- 
derson V.  New  York  Cent.  R.  R.  Co., 
78  N.  Y.  423;  Shepard  v.  Manhattan 
R'y  Co.,  117  N.  Y.  442,  23  N.  E.  30, 
and  other  cases.  In  Whipple  v.  Vil- 
lage of  Fair  Haven,  63  Vt.  221,  21 
Atl.  533,  the  court  took  jurisdiction 
to  enjoin  a  town  from  draining  on 
to  complainant's  land,  and  then  re- 
tained the  bill  to  award  damages. 

In  Parker  v.  Shannon,  114  III.  192, 
28  N.  E.  1099,  it  was  held,  however, 
that  chancery  will  not  try  the  title 
to  land,  on  having  acquired  jurisdic- 
tion, merely  to  enjoin  waste  tem- 
porarily while  the  legal  title  is  in 
dispute.  To  the  same  elTect,  see 
Freer  v.  Davis,  52  W.  Va.  1,  43  S.  E. 
164,  94  Am.  St.  Rep.  895,  59  L.  R.  A. 
556. 

(b)  Cited  to  this  effect  in  Fleish- 
ner  v.  Citizens'  R.  E.  &  I.  Co.,  25  Oreg, 
119,  35  Pac.  174;  Morris  v.  Bean,  123 
Fed.  618  (suit  to  restrain  diversion 
of  water)  ;  Richi  v.  Chattanooga 
Brewing  Co,  105  Tenn.  051,  58  S.  W. 
640. 


341 


JXmiSDICTION    EMBRACES    WHOLE    MATTEB. 


§  237 


some  particular  purpose,  will  complete  the  possible  relief 
by  decreeing  damages;  but  this  application  of  the  prin- 
ciple is  not  general ;  on  the  contrary,  it  is  rather  exceptional.. 
The  award  of  mere  compensatory  damages,  which  are  al- 
most always  unliquidated,  is  a  remedy  peculiarly  belonging 
to  the  province  of  the  law  courts,  requiring  the  aid  of  a 
jury  in  their  assessment,  and  inappropriate  to  the  judicial 
position  and  functions  of  a  chancellor.  It  may  be  stated^ 
therefore,  as  a  general  proposition,  that  a  court  of  equity 
declines  the  jurisdiction  to  grant  mere  compensatoiy  dam- 
ages, when  they  are  not  given  in  addition  to  or  as  an  incident 
of  some  other  special  equitable  relief,  unless  under  special 
circumstances  the  exercise  of  such  jurisdiction  may  be 
requisite  to  promote  the  ends  of  justice.*'    There  are,  how- 


(c)  Damages,  without  Other  Relief, 
rarely  Awarded. —  Accordingly,  ex- 
cept in  the  instances  stated  below  in 
the  text  and  notes,  a  case  will  not 
be  retained  when  no  right  to  equi- 
table relief  is  made  out.  "  If  such 
a  procedure  could  be  tolerated,  a 
party  having  an  action  maintainable 
at  law,  but  which  he  would  prefer 
not  to  have  presented  to  the  con- 
sideration of  a  jury,  could  quite  fre- 
quently so  frame  his  pleadings  as  to 
entitled  him  to  go  to  trial  before  the 
court  on  its  equity  side,  and  then 
claim  the  right  to  have  the  court 
award  the  damages  in  violation  of  the 
constitutional  guaranty  of  a  right  of 
trial  by  jury."  Green  v.  Stewart,  45 
N.  Y.  Supp.  982,  19  App.  Div.  201. 
Thus,  "  when  an  action  at  law  is 
sought  to  be  restrained  by  suit  in 
equity,  and  part  of  the  grounds  on 
which  the  bill  rests  are  purely  of 
equitable  cognizance,  and  part,  when 
considered  separately,  are  strictly  of 
legal  cognizance,  and  the  proofs  do 
not  establish  the  allegations  which 
are  of  purely  equitable  cognizance,  a 
court  of  equity  has  not  jurisdiction 
to  further  restrain  the  action  at  law. 


and  proceed  to  determine  the  legal 
rights  of  the  parties."  Collier  v. 
Collier  (N.  J.  Eq.),  33  Atl.  193.  See 
also  Dugan  v.  Cureton,  1  Ark.  ( 1 
Pike)  31,  31  Am.  Dec.  727;  Roddy 
V.  Cox,  29  Ga.  298,  74  Am.  Dec.  64. 
In  Crowell  v.  Young  (Ind.  T.),  64 
S.  W.  607,  it  was  held  that  a  money 
judgment  cannot  be  given  upon  a  bill 
for  foreclosure  when  the  right  to 
equitable  relief  is  not  made  out.  In 
Bittenbender  v.  Bittenbender,  185  Pa. 
St.  135,  39  AfB.  838,  the  complainant 
failed  in  a  bill  to  annul  a  contract  for 
the  dissolution  of  a  partnership.  It 
was  held  that  the  bill  would  not  b« 
retained  for  the  purpose  of  working 
out  the  equities  under  the  contract. 
In  Toplitz  V.  Bauer,  49  N.  Y.  Supp. 
840,  26  App.  Div.  125,  the  court  re- 
fused to  set  aside  an  assignment  of  an 
insurance  policy  for  fraud.  It  was 
held  that  the  bill  should  not  be  re- 
tained to  award  damages.  On  the 
general  principle,  see  also  Alger  v. 
Anderson,  92  Fed.  696,  and  cases 
there  reviewed;  Kinsey  v.  Bennett,  37 
S.  C.  319,  15  S.  E.  965;  Boston 
Blower  Co.  v.  Carman  Lumber  Co., 
94  Va.   94,   26   S.  E.  390;   Hawes  v. 


§    237  EQUITY   JURISPRUDENCE.  342 

ever,  special  circumstances  in  which  the  principle  under  dis- 
cussion is  invoked  and  is  extended  to  the  award  of  mere  dam- 
ages. If  a  court  of  equity  obtains  jurisdiction  of  a  suit  for 
the  purpose  of  granting  some  distinctively  equitable  relief, 
such,  for  example,  as  the  specific  performance  of  a  contract, 
•or  the  recission  or  cancellation  of  some  instrument,  and  it 
■appears  from  facts  disclosed  on  the  hearing,  but  not  known 
to  the  plaintiff  when  he  brought  his  suit,  that  the  special  re- 
lief prayed  for  has  become  impracticable,  and  the  plaintiff 
is  entitled  to  the  only  alternative  relief  possible  of  dam- 
ages, the  court  then  may,  and  generally  will,  instead  of  com- 
pelling the  plaintiff  to  incur  the  double  expense  and  trouble 
of  an  action  at  law,  retain  the  cause,  decide  all  the  issues  in- 
volved, and  decree  the  payment  of  mere  compensatory  dam- 
ages.' ^ 

3  Holland  v.  Anderson,  38  Mo.  55,  58 ;  Wiswall  v.  McGovern,  2  Barb.  270 ; 
•Cuff  V.  Dorland,  56  Barb.  481.  Holland  v.  Anderson,  38  Mo.  55,  was  a  suit 
iby  the  vendee  to  cancel  a  contract  for  the  sale  of  land,  on  the  ground  of  tlie 
-vendor's  fraud.  A  rescission  was  found  to  be  impossible,  because  the  property 
"had  been  changed,  and  the  parties  could  not  be  restored  to  their  original 
condition.  The  general  doctrine  was  stated  that  "  a  court  of  equity  will  some- 
times give  damages,  which  are  generally  only  recoverable  at  law,  in  lieu  of 
equitable  relief,  when  it  has  obtained  jurisdiction  on  other  grounds.''  The 
application  of  the  principle  to  the  relief  of  damages  has  frequently  occurred 
in  suits  for  a  specific  performance.    The  following  rules  have  been  established 

Dobbs,  18  N.  Y.  Supp.  123;  Whyte  relief  to  cancellation  and  reconvey- 
y.  Builders  League,  54  N.  Y.  Supp.  ance)  ;  quoted  in  Cole  v.  Getzinger, 
€22,  35  App.  Dir.  480;  Vincent  v.  96  Wis.  559,  71  N.  W.  75.  See  also 
Moriarty,  52  N.  Y.  Supp.  519;  Dowell  Van  Rensselaer  v.  Van  Rensselaer,  113 
v.  Mitchell,  105  U.  S.  430;  Lamb  I^it  N.  Y.  208,  21  N.  E.  75.  In  the  au- 
Goods  Co.  v.  Lamb,  119  Mich.  5G8,  thor's  note  are  rules  as  to  specific 
78  N.  W.  646;  Miller  v.  St.  Louis  performance.  The  text  is  applicable 
A  K.  C.  R.  Co.,  162  Mo.  424,  63  S.  W.  to  other  actions.  Thus,  in  Bigelow  v. 
85;  Gamage  v.  Harris,  79  Me.  531,  Town  of  Washburn,  98  Wis.  553,  74 
11  Atl.  422;  Ahl'a  Appeal,  129  Pa.  N.  W.  362,  a  suit  Avas  brought  to  en- 
6t.  49,  18  Atl.  475,  477;  Kerlin  v.  join  the  collection  of  a  tax.  Pending 
Knipp,  207  Pa.  f>t.  649,  57  Atl.  34.  the  suit,  an  officer  levied  on  the  prop- 
(d)  Cited  with  approval  in  Blair  erty,  and  to  prevent  a  sale  the  tax  waa 
V.  Smith,  114  Ind.  114,  15  N.  E.  817,  paid.  It  was  held  that  the  court 
6  Am.  St.  Rep.  593;  Martin  v.  Mar-  would  retain  the  case  for  complete  re- 
tin,  44  Kan.  295,  24  Pac.  418;  Van  lief.  In  Moon  v.  National  Wall-Paper 
DiiHfn  V.  Bigelow  (N.  Dak.),  100  Co.,  00  N.  Y.  Supp.  33,  31  Misc.  Rep. 
N.   W.   723    (damages   as  alternative  631,   the  complainant   sued   to   abate 


343 


JUEISDICTION    EMBRACES    WHOLE    MATTER. 


238 


§  238.  The  extent  and  operation  of  tlie  general  principle 
are  also  illustrated  by  the  following  instances,  which  do 
not  admit  of  any  regular  classification:  In  a  suit  to  redeem 
land  sold  under  a  trust  deed  made  by  a  former  owner,  on 

by  American  decisions:  If  through  a  failure  of  the  vendor's  title,  or  any 
other  cause,  a  specific  performance  is  really  impossible,  and  the  vendee  ia 
aware  of  the  true  condition  of  affairs  before  and  at  the  time  he  brings  his 
suit,  the  court,  being  of  necessity  obliged  to  refuse  the  remedy  of  specific 
performance,  will  not,  in  general,  retain  the  suit  and  award  compensatory 
damages,  because,  as  has  been  said,  the  court  never  acquired  a  jurisdiction 
over  the  cause  for  any  purpose :«  Hatch  v.  Cobb,  4  Johns.  Ch.  559;  Kemp- 
ehall  V.  Stone,  5  Johns.  Ch.  194;  Morss  v.  Elmendorf,  11  Paige,  277;  Smith 
v.  Kelley,  56  Me.  64;  McQueen  v.  Chouteau,  20  Mo.  222,  64  Am.  Dec.  178; 
Doan  V.  Mauzey,  33  111.  227;  Gupton  v.  Gupton,  47  Mo.  37;  Milkman  v. 
Ordway,  106  Mass.  232,  253;  Sternberger  v.  McGovern,  56  N.  Y.  12,  20;  and 
see  also  cases  next  cited.  A  second  rule  iSj  that  if  the  remedy  of  specific 
performance  is  possible  at  the  commencement  of  a  suit  by  the  vendee,  and 
while  the  action  is  pending  the  vendor  renders  this  remedy  impracticable  by 
conveying  the  subject-matter  to  a   hona  fide  purchaser  for  value,   the  court 


a  nuisance  which  was  voluntarily 
abated  after  the  suit  was  com- 
menced, and  the  court  retained  the 
case  for  the  purpose  of  awarding 
damages.  In  Lewis  v.  Town  of 
Kingston,  16  R.  I.  15,  11  Atl.  173, 
27  Am.  St.  Rep.  724,  complainant 
sought  to  enjoin  a  town  from  remov- 
ing his  building  and  grading  his 
lot.  The  town  completed  the  work 
after  the  filing  of  the  bill,  and  the 
court  retained  jurisdiction  to  give 
damages.  In  Case  v.  Minot,  158 
Mass.  577,  22  L.  R.  A.  536,  33  N.  E. 
700,  a  tenant  sued  his  landlord  to 
enjoin  a  nuisance.  The  right  to  the 
injunction  was  lost  because  of  the 
termination  of  the  lease  before  the 
hearing.  It  was  held  that  the  suit 
should  be  retained  for  the  purpose 
of  awarding  damages.  In  general, 
whenever  a  court  of  equity  has  juris- 
diction to  entertain  a  bill  for  an  in- 
junction against  the  commission  or 
continuance  of  a  wrongful  act,  it  may 
award  damages  in  substitution  for 
■uch    injunction,    where    the    defend- 


ant by  his  acts  committed  subsequent 
to  the  service  of  process  upon  him 
has  rendered  relief  by  injunction  in- 
effectual. Hazen  v.  Lyndonville  Nat. 
Bank,  70  Vt.  543,  55G,  67  Am.  St. 
Rep.  680,  689,  41  Atl.  1046,  1051,  cit- 
ing the  text;  Lewis  v.  Town  of  North 
Kingston,  16  R.  I.  15,  26  Am.  St.  Rep. 
724,  11  Atl.  173;  Hayden  v.  Yale,  45 
La.  Ann.  362,  40  Am.  St.  Rep.  232, 
12  South.  633;  Westphal  v.  City  of 
New  York,  177  N.  Y.  140,  69  N.  E. 
S69. 

See  also  Stiefel  v.  New  York  Nov- 
elty Co.,  43  N.  Y.  Supp.  1012,  14  App. 
Div.  371 ;  Atkinson  v.  Felder,  78  Miss. 
83,  29  South.  767^  Robinson  v. 
Braiden,  44  W.  Va.  183,  28  S.  E.  798 ; 
State  V.  Sunapee  Dam  Co.  (N.  H.), 
55  Atl.  899. 

(e)  See  also  Hurlbut  v.  Kantzler, 
112  111.  482;  Amick  v.  Ellis,  53  W. 
Va.  421,  44  S.  E.  257  (contract  on 
its  face  is  unenforceable).  If  specific 
performance  is  refused  because  the 
contract  is  within  the  statute  of 
frauds,  damages  will  not  be  allowed 


§    238  EQUITY   JUKISPRUDENCB.  344 

the  ground  that  the  sale  was  voidable,  brought  by  a  plain- 
tiff holding  by  a  subsequent  conveyance  from  such  former 
owner,  against  a  defendant  deriving  title  partly  from  the 
trust  sale  and  partly  from  another  source,  the  court  not 
only  dismissed  the  plaintiff's  bill,  but  by  an  affirmative 

will  not  compel  the  plaintiff  to  bring  a  second  action  at  law,  but  having 
acquired  jurisdiction,  will  do  full  justice  by  decreeing  a  recovery  of  dam- 
ages:' Morss  V.  Elmendorf,  11  Paige,  277;  Woodcock  v.  Bennet,  1  Cow. 
711,  13  Am.  Dec.  568;  Milkman  v.  Ordway,  106  Mass.  232,  253,  per 
Wells,  J.  The  third  rule  is  as  follows:  If  a  specific  performance  was- 
originally  possible,  but  before  the  commencement  of  the  suit  the  vendor 
makes  it  impossible  by  a  conveyance  to  a  third  person;  or  if  the  disabil- 
ity existed  at  the  very  time  of  entering  into  the  contract  on  account  of 
a  defect  in  the  vendor's  title,  or  other  similar  reason, —  in  either  of  these 
cases,  if  the  vendee  brings  his  suit  in  good  faith,  without  a  knowledge  of 
the  existing  disability,  supposing,  and  having  reason  to  suppose,  himself 
entitled  to  the  equitable  remedy  of  a  specific  performance,  and  the  impos- 
sibility is  first  disclosed  by  the  defendant's  answer  or  in  the  course  of  the 
hearing,  then,  although  the  court  cannot  grant  a  specific  performance,  it  will 
retain  the  cause,  assess  the  plaintiff's  damages,  and  decree  a  pecuniary  judg- 
ment in  place  of  the  purely  equitable  relief  originally  demanded.  This  rule  i» 
settled  by  an  overwhelming  preponderance  of  American  authorities  :S     Milk- 

for  its  breach :     Lydick  v.  Holland,  83  lief,  yet,  if  the  facts  be  such  that  the 

Mo.  703 ;   and  see  Lavery  v.  Pursell,  plaintiff  might  fairly  and  reasonably 

L.  R.  39  Ch.  Div.  518.  have  expected  the  court  to  grant  the 

W  Cited  to  this  effect  in  Head  v.  equitable    relief   of   specific   perform- 

Meloney,  111   Pa.  St.  99,  2  Atl.  195.  ance,  there  would  be  such  a  show  of 

See  also  Conemaugh  Gas  Co.  v.  Jack-  equitable     cognizance     and     doubtful 

son  Farm  Gas  Co.,   186  Pa.  St.  443,  remedy  and  probable  cause  as  would 

65  Am.   St.   Rep.   865,   40  Atl.    1000.  save  the  plaintiff  from  the  penalty  of 

The  rule  applies  where  the  contract  a  dismissal   of  the  bill   for  want  of 

is     performed     after    commencement  jurisdiction  because  of  a  plain,  ade- 

of   suit.     Grubb   v.   Sharkey,   90   Va.  quate  and  complete  remedy  at  law." 

831,  20  S.  E.  784.  Waite    v.    O'Neil,    72    Fed.    348;    af- 

(■r)  In  McAllister  v.  Harman,  (Va.)  firmed,  76  Fed.  408,  22  C.  C.  A.  248, 

42  S.   E.  920,  a  suit  by  the  vendor,  34  L.  R.  A.  550.     In  Aday  v.  Echols, 

which  failed,  was  retained  for  an  ac-  18   Ala.   353,   52  Am.   Dec.   225,   spe- 

count   of   money   paid   and   rents   re-  cific  performance  was  refused  because 

ceived.  the  contract  was  not  clearly  proved, 

Another  rule  has  been  suggested  in  but  the  bill  was  retained  for  damages. 

addition   to  those   stated   in  the   au-  And  see  Goddard  v.  American  Queen, 

thor's  note.    "  Even  though  the  court  59  N.  Y.  Suppl,  46,  27  Misc.  Rep.  482. 

should    deny    a    specific    performance  In  Combs  v.   Scott,  76   Wis.   662,  4& 

of  the  contract  in  the  exercise  of  that  N.  W.  532,  the  statute  of  limitations 

judicial    discretion    whicli    it    has    in  having  run  u^)on  the  contract  pending 

ail  cases  asking   tliat  particular   re-  suits    for    specific    performance,    the 


345  JUKISDICTION    EMBRACES    WHOLE    MATTER.  §    238 

decree  declared  and  established  the  defendant's  title.^  In 
a  suit  brought  by  the  holder  of  a  vendor's  lien  to  enjoin  the 
sale  of  land  covered  by  the  lien,  about  to  be  made  by  a  judg- 
ment creditor  of  the  owner,  the  court  went  on  and  decreed 
a  sale  of  the  land,  and  the  application  of  its  proceeds  in  sat- 
isfaction, first,  of  the  plaintiff's  vendor's  lien,  and  then  of 

man  v.  Ordway,  106  Mass.  232,  253;  Chartier  v.  Marshall,  56  N.  H.  478; 
Attorney-General  v.  Deerfield  River  Bridge  Co.,  105  Mass.  1 ;  Peabody  v. 
Tarbell,  2  Gush.  226;  Andrews  v.  Brown,  3  Gush.  130;  Pingree  v.  Goffin,  12 
Gray,  288,  305;  Woodcock  v.  Bennet,  1  Gow.  711,  13  Am.  Dec.  568;  Phillips 
V.  Thompson,  1  Johns.  Gh.  131 ;  Parkhurst  v.  Van  Gortlandt,  1  Johns.  Gh. 
273;  Morss  v.  Elmendorf,  11  Paige,  277;  Woodward  v.  Harris,  2  Barb.  439; 
Berry  v.  Van  Winkle,  2  N.  J.  Eq.  2G9;  Gopper  v.  Wells,  1  N.  J.  Eq.  10; 
Rees  V.  Smith,  1  Ohio,  124,  13  Am.  Dec.  599;  Gibbs  v.  Ghampion,  3  Ohio, 
335;  Jones  v.  Shackelford,  2  Bibb,  410;  Fisher  v.  Kay,  2  Bibb,  434;  Rankin 
V,  Maxwell,  2  A.  K.  Marsh.  488,  12  Am.  Dec.  431;  Hopkins  v.  Oilman.  22 
Wis.  476;  Tenney  v.  State  Bank,  20  Wis.  152;  Hall  v.  Delaplaine,  3  Wis. 
206,  68  Am.  Dec.  57;  McQueen  v.  Chouteau,  20  Mo.  222,  64  Am.  Dec.  178; 
O'Meara  v.  North  Am.  Min.  Co.,  2  Nev,  112;  Carroll  v.  Wilson,  22  Ark.  32; 
Harrison  v.  Deramus,  33  Ala.  463;  Foley  v.  Grow,  37  Md.  51;  Stevenson  v. 
Buxton,  37  Barb.  13;  Hamilton  v.  Hamilton,  59  Mo.  232;  Gupton  v,  Gupton, 
47  Mo.  37,  47;  Denton  v.  Stewart,  1  Cox,  258;  Greenaway  v.  Adams,  12  Ves. 
393.  In  the  recent  case  of  Milkman  v.  Ordway,  106  Mass.  232,  253,  the  opinion 
of  Wells,  J.,  is  a  very  full,  able,  and  instructive  examination  of  the  doctrine 
in  all  of  its  aspects.  1  add  a  number  of  English  decisions,  giving  construc- 
tion to  the  statute  known  as  "Lord  Cairns's  Act"  (21  &  22  Vict.,  chap.  27» 
§  1,  A.  D.  1858),  which  permits  a  court  of  equity  to  award  damages  in  cer- 
tain cases,  instead  of  the  particular  equitable  relief  prayed  for,  when  the 
latter  is  found  to  be  impracticable:  Wicks  v.  Hunt,  Johns.  372,  380;  Lewers 
V.  Earl  of  Shaftesbury,  L.  R.  2  Eq.  270;  Scott  v.  Ravment,  L.  R,  7  Eq.  112; 
Ferguson  v.  Wilson,  L.  R.  2  Gh.  77;  Durell  v.  Pritchard,  L.  R.  1  Gh.  244; 
Rogers  v.  Ghallis,  27  Beav.  175;  Chinnock  v.  Sainsbury,  30  L.  J.,  N.  S.,  409; 
Collins  V.  Stubly,  7  Week.  Rep.  710;  Corporation  of  Hythe  v.  East,  L.  R,  1 
Eq.  620;  Middleton  v.  Greenwood,  2  De  Gex,  J.  &  S.  142;  Soames  v.  Edge, 
John.  669;  Lillie  v.  Legh,  3  De  Gex  &  J.  204;  De  Brassac  v.  Martin,  11 
Week.  Rep.  1020;  Gory  v.  Thames,  etc.,  11  Week.  Rep.  589;  Howe  v.  Hunt, 
31  Beav.  420;  Norris  v.  Jackson,  1  Johns.  &  H.  319,  3  Giflf.  396;  Samuda 
v.  Lawford,  8  Jur.,  N.  S.,  739. 
iFarrar  v.  Payne,  73  111.  82,  91. 

cause  was  retained  for  the  purpose  of  relief.    Thus,  where  the  bill  seeks  spe- 

granting  compensation.  cific  performance  of  a  contract  to  de- 

Of  course  when  the  court  takes  ju-  liver   certain   instruments,   the   court 

rlsdiction  of  a   bill   for   specific  per-  may  decree  specific  performance  and 

form-ance   and   the   relief   is  granted,  then  award  a  money  recovery  on  the 

the  bill  will  be  retained  for  complete  instruments.      Clarke    v.    White,    37 


•'^    238  EQUITY   JURISPRUDENCE.  346 

tlie  judgment  creditor's  demand.^  A  suit  being  brought 
to  reform  a  policy  of  insurance  after  a  loss  had  occurred, 
"the  court  retained  the  cause  and  gave  the  plaintiff  final  and 
complete  relief  by  ordering  a  payment  of  the  amount  due 
on  the  policy  as  reformed,  although  the  remedy  would  ordi- 
narily and  naturally  have  belonged  to  a  court  of  law.^* 

2  Parker  v.  Kelly,  10  Smedes  &  M.  184.  A  vendor  had  given  a  bond  to 
convey  land,  and  had  taken  the  vendee's  notes  for  the  price,  one  of  wliich 
notes  he  assigned  to  the  plaintiff,  and  afterwards  gave  a  deed  of  the  land 
to  the  vendee.      Subsequently   to   this    conveyance,   A   recovered   a   judgment 

•against  the  vendee,  and  was  about  to  sell  the  land  in  question  upon  an  execu- 
tion. The  plaintiff  thereupon  brought  this  suit  to  enjoin  such  execution  sale, 
on  the  ground  that  the  vendor's  lien  securing  his  note  given  by  the  vendee 
was  prior  to  the  lien  of  A's  judgment.  The  court  held  that,  having  jurisdic- 
tion to  enjoin  said  sale,  it  would  go  on  and  settle  the  rights  of  all  the  parties 
by  decreeing  a  sale  of  the  land,  and  a  payment  of  the  plaintiff's  note,  and 
then  of  A's  judgment  out  of  the  proceeds. 

3  Franklin  Ins.  Co.  v.  McCrea,  4  G.  Greene,  229 ;  (jom.  T,  Niagara  Ins. 
Co.,  60  N.  Y.  619,  3  Thomp.  &  C.  33;  Bidwell  v.  Astor  Ins.  Co.,  16  N,  Y. 
203.  It  should  be  remarked,  however,  that  all  these  decisions  were  made 
under  the  reformed  procedure,  by  which  legal  and  equitable  remedies  may  be 

-combined  in  the  same  "  civil  action." 

U.  S.  (12  Pet.)  178;  Union  Cent.  Life  ters  set  out  in  the  original  bill,  even 

Ins.  Co.  V.  Phillips,   102  Fed.   19,  41  though  it  be  affirmative  in  character, 

C.  C.  A.  263.     See  also  Griffin  v.  Grif-  it  need  not,  as  against  the  plaintiff 

fin,  163  111.  216,  45  N.  E.  241.  in  such  original  bill,  show  any  ground 

(a)  In  Union  Cent.  Life  Ins.  Co.  v.  of  equity  to  support  the  jurisdiction 

Phillips,  102  Fed.  19,  41  C.  C.  A.  263,  of  the   court."  •  In   Continental    Ins. 

a  bill  was  brought  to  compel  the  de-  Co.  v.  Garrett,   125  Fed.  589,  it  was 

livery  of  a  life  insurance  policy  after  held  that  the  court  having  obtained 

the  death  of  the  insured.     The  court  jurisdiction  to  set  aside  an  award  of 

retained  the  bill   to  give  final   relief  insurance    arbitrators    may    properly 

■on   the   policy.     In   North   British   &  retain    the    case    to    determine    the 

MfTC.    Ins.    Co.    V.    Lathrop,    63    Fed.  amount  of  damages.    Contra,  in  Stout 

608,  70  Fed.  429,  433,  25  U.  S.  App.  v.  Phajnix  Assur.  Co.   (N.  J.  Eq.),  56 

443,  an  injunction  was  issued  against  Atl.   691,  a  bill   to  set  aside  an   ap- 

«n    action    at    law   on    an    insurance  praisement  of  property  destroyed  by 

policy.     The  defendant  filed  a  cross-  fire,    the    court     refused,    umlor     the 

bill  to  enforce  payment.     The  injunc-  view   of   the   jurisdiction   entcrtiiined 

tion   was  continued   until   it  was  too  in  New  Jersey,  to  retain  the  case  in 

late   to   sue   at   law.      Accordingly   it  order  to  determine  the  extent  of  lia- 

was  hold  tliat  the  court  would  grant  bility. 

the    legal    relief    prayed    for    by    the  When  equity   takes  jurisdiction  to 

crossbill,  "  If  its  object  is  to  obtain  reform  an  instrument,  it  may  go  on 

complete   relief  concerning  the   mat-  and  decree  full  relief  thereon.   Haynet 


347  JUBISDICTION    EMBRACES    WHOLE    MATTER.  §    239 

§  239.  A  suit  was  brought  by  creditors  of  a  firm  against 
the  administrator  of  a  deceased  partner,  to  restrain  him 
from  using  and  disposing  of  certain  assets  which  were  really 
firm  assets,  under  the  claim  that  they  belonged  to  the  dece- 
dent's individual  estate.  The  court,  expressly  invoking  the 
general  principle,  held  that,  having  acquired  jurisdiction 
over  a  part  of  the  matter,  it  would  go  on  and  decree  a 
full  and  final  winding  up  and  settlement  of  all  the  partner- 
ship matters.^  *  In  a  certain  judicial  proceeding  in  which 
a  preliminary  injunction  had  been  issued,  two  injunction 
bonds  had  been  given  by  the  same  party  as  principal,  but 
with  different  sureties.  The  injunction  having  been  finally 
dissolved,  the  several  persons  enjoined  were  separately  in- 
jured by  the  injunction,  and  therefore  claimed  different 
amounts  of  damages.  These  several  persons  joined  as  co- 
plaintiffs  in  an  equity  suit  against  the  obligors,  principal 
and  sureties,  on  the  two  bonds,  to  recover  the  amounts  of 
damages  to  which  they  were  respectively  entitled.  The 
court  retained  the  cause,  and  decreed  complete  relief,  de- 
termining the  sums  to  be  paid  by  the  defendants,  and  also 
the  share  of  each  plaintiff.  Having  jurisdiction  to  settle 
the  rights  of  the  several  obligees,  the  plaintiffs,  to  the  pro- 
ceeds, the  court  could  in  one  equity  suit  finally  settle  the 
rights  and  liabilities  of  all  the  parties,  and  thus  save  time, 
expense,  and  unnecessary  litigation.^    In  a  suit  brought  in 

1  Martin  v.  Tidwell,  36  Ga.  332,  345. 

2  0elrich3  v.  Spain,  15  Wall.  211,  228,  per  Swayne,  J. 

V.  Whitsett,  18  Oreg.  454,  22  Pac.  (a)  Likewise,  in  Kayser  v.  Mong- 
1072;  Imperial  Shale  Brick  Co.  v.  ham,  8  Colo.  232,  6  Pac.  803,  suit  was 
Jewett,  169  N.  Y.  143,  62  N.  E.  167;  brought  by  one  claiming  to  be  an 
Kelly  V.  Galbraith,  186  111.  593,  58  equitable  owner  of  realty  because  of 
N.  E.  431;  Keith  v.  Henkleman,  173  partnership  transactions  for  the  pur- 
Ill.  137,  50  N.  E.  692.  And  see  Har-  pose  of  compelling  a  conveyance  of 
vey  V.  United  States,  105  U.  S.  671,  the  legal  title.  This  relief  was  de- 
■where  the  Court  of  Claims  gave  such  nied,  but  the  court  retained  the  case 
relief  under  authority  of  a  special  for  an  account  and  a  settlement  ol 
statute.  the  partnership  affairs. 


§    240  EQUITY    JURISPRUDENCE.  348- 

the  United  States  circuit  court  for  the  infringement  of  a 
patent  right,  which,  under  the  constitution  and  statutes  of 
Congress,  belongs  to  the  exclusive  jurisdiction  of  that  tri- 
bunal, the  court  retained  the  cause,  and  gave  to  the  plain- 
tiff full  relief  by  injunction,  and  an  account  of  profits  on 
a  contract  which  had  been  made  between  the  parties  for 
the  use  of  the  patent  by  the  defendant,  which  contract  had 
been  violated  by  the  defendant.  It  should  be  particularly 
noticed  that  the  cause  of  action  arising  out  of  the  breach  of 
this  contract  alone  did  not  of  itself  come  within  the  equity 
jurisdiction  of  the  United  States  courts.^ 

§  240.  In  a  suit  by  a  vendee  to  set  aside  a  contract  for 
the  sale  of  land,  on  the  ground  of  the  vendor's  fraud,  or 
because  he  is  unable  to  give  a  good  title,  the  court  will 
award  a  repayment  of  the  purchase-money  already  paid, 
or  damages,  or  make  any  other  additional  decree  which 
the  justice  of  the  case  may  require.^  In  a  similar  manner, 
a  suit  having  been  brought  by  the  heirs  of  the  next  of  kin 
or  a  decedent  against  his  administrator,  to  set  aside  a  de- 
cree of  a  probate  court  confirming  his  accounts  and  order- 
ing a  sale  of  real  estate,  which  the  administrator  had  ob- 
tained by  fraud,  the  court  held  that,  having  obtained  juris- 
diction to  set  aside  this  fraudulent  decree,  it  would  grant 
complete  and  final  relief,  by  directing  an  account  of  all  his 
proceedings  by  the  administrator,  and  a  settlement  and  dis- 

8  Brooks  V.  Stolley,  3  McLean,  523,  529,  per  McLean,  J. :  "  Having  juris- 
diction [i.  e.,  by  the  infringement],  the  court  may  decide  other  matters  be- 
tween the  parties,  wliich  of  themselves  might  not  afford  ground  for  the  original 
exercise  of  jurisdiction."  , 

1  Hepburn  v.  Dunlop,  1  Wheat.  179,  197,  per  Washington,  J.:  "Generally 
speaking,  a  court  of  law  is  competent  to  afford  an  adequate  relief  to  either 
party  for  a  breach  of  tiie  contract  by  the  other,  from  wliatevcr  cause  it  may 
have  proceeded ;  and  whenever  this  is  the  case,  a  resort  to  a  court  of  equity 
is  improper.  But  if  the  contract  ought  not  in  conscience  to  bind  one  of  the 
parties,  as  if  he  had  acted  under  a  mistake,  or  was  imposed  upon  by  the 
other  party,  or  the  like,  a  court  of  equity  will  interfere  and  afford  a  relief 
which  a  court  of  law  cannot,  by  setting  aside  the  contract;  and  having  thus 
obtained  jurifidiction  of  the  principal  question,  that  court  will  proceed  to 
make  hucli  oilier  decree  as  the  justice  of  the  case  may  require." 


349  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    241 

tribution  of  tlie  estate,  althoiigli  the  general  jurisdiction 
over  administrations  had  been  conferred  by  statute  upon  the 
probate  court.^ 

§  241.  Money  arising  from  a  sheriff's  sale  made  in  the 
course  of  a  pending  suit  was  paid  into  court.  This  fund, 
after  an  examination  before  a  master,  was  found  by  him 
to  be  applicable  upon  a  certain  judgment  in  favor  of  one 
S.  One  L.  alleged  that  such  judgment  had  in  fact  been 
given  to  secure  a  debt  due  to  himself,  and  he  therefore 
claimed  the  money.  The  court  held  that  it  had  incidental 
jurisdiction  to  decide  these  conflicting  claims  arising  in 
the  course  of  the  principal  suit,  and  to  distribute  the  fund 
among  the  rightful  owners.^  The  defendant,  by  one 
wrongful  act  and  in  one  mass,  detained  a  quantity  of  chattels 
belonging  to  the  plaintiff.  A  part  of  these  were  articles  of 
a  special  nature  and  personal  value,  for  which  damages 
could  not  adequately  be  ascertained,  and  in  respect  of 
which  the  equity  jurisdiction  to  compel  their  restoration 
was  clear.  The  remaining  portion  were  ordinary  chattels, 
of  a  kind  readily  purchasable  in  the  market,  and  for  which 
damages  could  be  assessed  without  difficulty.  The  plaintiff 
brought  a  suit  in  equity  to  compel  the  restoration  of  the 
entire  mass  of  chattels.  The  court  held  that  since  its  juris- 
diction attached  over  the  one  class  of  articles,  it  would 
decide  the  whole  controversy  in  the  one  suit,  and  decree  a 
return  of  the  entire  amount,  the  two  kinds  being  connected 
by  the  single  wrongful  act  of  the  defendant.^  Certain 
lands  had  been  assigned  to  a  widow,  by  virtue  of  her  dower 

§  240,  2Keeton  v.  Spradling,  13  Mo.  321,  323. 

§  241,  1  Souder's  Appeal,  57  Pa,  St.  498,  502.  "  Where  a  court  of  equity 
once  obtains  rightful  jurisdiction  of  a  subject,  it  will  comprehend  within  its 
grasp  and  decide  all  incidental  matters  necessary  to  enable  it  to  make  a  full 
and  final  determination  of  the  whole  controversy,  and  thus  to  terminate  litiga- 
tion, while  it  facilitates  the  remedy:  McGowin  v.  Remington,  12  Pa.  St.  56, 
•51  Am.  Dec.  504." 

§  241,  2  McGowin  v.  Remington,  12  Pa.  St.  56,  63,  51  Am.  Dec.  584.  The 
whole  opinion  in  this  case  is  able  and  instructive. 


§    241  EQUITY    JUKISPRUDENCB.  350 

right.  Part  of  these  lands  were  occupied  by  tenants  under 
a  lease  made  by  her  husband  during  his  lifetime,  and  a  part 
were  occupied  by  tenants  under  leases  made  by  the  adminis- 
trator after  the  husband's  death  and  before  the  assignment 
to  the  widow.  She  brought  a  suit  in  equity  against  the 
administrator  and  these  tenants,  to  recover  the  rents  of  the 
lands  assigned  to  her  which  had  accrued  after  her  husband's 
death  and  before  the  assignment,  namely,  the  rents  under 
the  lease  made  by  her  husband,  and  the  rents  arising  under 
the  leases  made  by  the  administrator.  The  suit  was  held  to 
be  properly  brought ;  and  the  jurisdiction  having  attached, 
the  court  would  do  full  justice  by  settling  an  account  of  the 
rents  due  or  paid  by  the  tenants  of  the  administrator  up  to 
the  time  when  the  administrator's  possession  was  ter- 
minated by  the  assignment  and  delivery  of  the  land  to  the 
widow,  although  such  rents  might  be  recovered  by  her  in  an 
action  at  law.^  In  a  suit  to  compel  the  delivery  of  certain 
written  instruments  under  an  agreement,  the  court  decreed 
that  defendant  should  repay  moneys  expended  by  the  plain- 
tiff in  connection  with  their  contract.'*  One  or  two  other 
cases  depending  upon  peculiar  circumstances  will  be  found 
in  the  foot-note.  °  * 

3  Boyd  V.  Hunter,  44  Ala.  705,  719;  citing  Stow  v.  Bozeman's  Ex'rs,  29 
Ala.  397. 

4  Clarke  v.  White,  12  Pet.  178,  187,  188. 

6  Phelan  v.  Boylan,  25  Wis.  679 :  The  owners  in  fee  in  reversion  of  cer- 
tain lands  after  a  life  tenant  by  the  curtesy  in  possession  brought  a  suit 
to  compel  him  to  hold  a  tax  title  of  the  premises  which  he  had  obtained, 
for  the  benefit  of  their  reversionary  estate  as  well  as  for  his  own  life  interest. 
The  court  held  that,  having  acquired  jurisdiction  for  this  purpose,  it  would 
grant  further  relief  necessary  to  maintain  the  rights  of  the  plaintiffs;   viz., 

(a)  Miscellaneous  Instances. —  App.  Ill,  49  S.  W.  160,  or  it  may  be 

Where  a  proper  case  is  made  out  for  some    purely    equitable     relief.       In 

cancellation  of  an  instrument,  full  re-  Shipman  v.  Furniss,  69  Ala.  555,  44 

lief  may  be  given.     United  Ktates  v.  Am.  Rep.  528,  a  bill  was  brought  to 

Union   Pac.   R.   Co.,   160   U.   S.   1,   16  cancel  a  deed  obtained  by  fraud  as  a 

Sup.   Ct.    15J0.     This   relief  may  con-  cloud  on  title.     The  court  said:     "It 

aibt  of  money  damages,  as  in  Pioneer  is  true  that  the  jurisdiction  of  a  court 

Bay.  &  Loan  Co.  v.  Peck,  20  Tex.  Civ.  of  equity  cannot  be  invoked  when  the 


351  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    242 

§  242.  Effect  of  the  Reformed  Procedure  on  the  Doctrine. — 
It  "was  a  fundamental  conception  oi'  the  equity  jurispru- 
dence, from  the  earliest  periods  as  soon  as  its  jurisdiction 
became  established  and  its  peculiar  methods  became  de- 
veloped, that  the  court  of  chancery,  in  any  cause  coming 

it  compelled  the  defendant  to  refund  moneys  which  the  plaintiffs  had  been 
compelled  to  pay  for  the  taxes  assessed  on  the  premises  through  several  years, 
in  order  to  save  them  from  tax  sale,  he  having  intentionally  neglected  to 
pay  such  taxes;  and  it  might  compel  him  to  give  security  to  pay  the  taxes 
which  miglit  be  assessed  in  future.  State  v.  McKay,  43  Mo.  594,  698: 
The  attorney-general  brought  this  suit  against  certain  executive  officers  of 
the  state,  and  against  the  vendees,  charging  fraud  in  the  sale  of  a  rail- 
road which  had  belonged  to  the  state,  and  praying  for  a  rescission  of  the 
sale,  an  accoiinting,  and  general  relief.  While  the  suit  was  pending,  the 
legislature  passed  a  statute  confirming  the  sale,  and  the  title  to  the  road 
of  the  vendees.  The  defendants  claimed  that  the  jurisdiction  of  the  court 
was  thereby  ended.  The  court,  however,  asserted  its  continued  jurisdic- 
tion, invoking  the  general  principle  under  discussion,  and  holding  that 
it  might  sometimes  award  damages  when  it  had  obtained  jurisdiction  on 
other  grounds.  "And  so,  too,  it  will  afford  such  relief  as  the  altered  situa- 
tion of  the  parties  or  of  the  subject-matter  requires,  if  sufficient  remains 
to  warrant  equitable  interference." 

8ole  ground  of  equitable  interference  Salem  Imp.  Co.  v.  McCourt,  26  Oreg. 

is  a  removal  of  a  cloud  from  the  title,  93,  41  Pac.   1105,  it  was  held  that  a 

unless    the    complainant    is,    at    the  bill   to   quiet   title   may   be   retained 

time,  in  possession.     But  the  rule  is  for    the    purpose    of    determining    a 

different  when  other  distinct  grounds  boundary. 

of  jurisdiction  are  averred,"  The  principle  applies  as  well  to 
Similarly,  when  equity  takes  juris-  bills  to  set  aside  fj-audulent  convey- 
diction  to  quiet  title  it  may  retain  the  ances,  and  full  relief  will  be  granted, 
case  for  such  further  relief  as  may  be  Chrislip  v.  Teter,  43  W.  Va.  356,  27 
proper.  Slegel  v.  Herbine,  148  Pa.  St.  S,  E.  288;  Brock  v.  Berry,  132  Ala. 
236,  23  Atl.  996,  15  L.  R.  A.  547;  Elk  95,  90  Am.  St.  Rep.  896,  31  South. 
Fork  Oil  &  Gas  Co.  v.  Jennings,  84  517;  Adee  v.  Hallett,  3  App.  Div. 
Fed.  839;  Bryan  v.  McCann(W.  Va.),  308,  38  N.  Y,  Supp.  273;  Carpenter 
47  S.  E.  143  (suit  to  remove  cloud  v.  Osborn,  102  N.  Y.  552,  7  N.  E.  823. 
on  title).  In  Harding  v.  Fuller,  141  In  Chase  v.  Boughton,  93  Mich. 
111.  308,  30  N.  E.  1053,  a  bill  to  quiet  285,  54  N.  W.  44,  a  bill  to  set  aside 
title  was  retained  to  put  the  com-  a  forfeiture  of  a  contract  was  re- 
plainant  in  possession.  Under  the  tained  to  award  damages, 
burnt  record  act  in  Illinois  it  has  In  actions  for  partition  it  is  some- 
been  held  that  such  a  bill  may  be  re-  times  held  that  the  court  may  deter- 
tained  although  the  right  to  posses-  mine  the  legal  title.  Cecil  v.  Clark,, 
sion  is  involved.  Gormley  v.  Clark,  44  W.  Va.  659,  30  S.  E.  216;  Wilson 
134  U.  S.  338,  10  Sup.  Ct.  554.     In  v.  Dresser,  152  111.  387,  38  N.  E.  888. 


§  242 


EQUITY   JURISPRUDENCE. 


352 


before  it  for  decision,  if  the  circumstances  of  the  case  would 
permit,  and  all  the  parties  in  interest  were  or  could  be 
brought  before  it,  would  strive  to  determine  the  entire  con- 
troversy, to  award  full  and  final  relief,  and  thus  to  do  com- 
plete justice  to  all  the  litigants,  whatever  might  be  the 
amount  or  nature  of  their  interest  in  the  single  proceeding, 
and  thus  to  bring  all  possible  litigation  over  the  subject- 
matter  within  the  compass  of  one  judicial  determination. 
We  have  seen,  in  the  foregoing  paragraphs,  that  this  con- 
ception of  the  equity  jurisprudence  has  been  steadily  ap- 
plied throughout  the  whole  history  of  the  court  to  a  great 


But  see  Kilgore  v.  Kilgore,  103  Ala. 
614,  15  South.  897.  In  Holloway  v. 
Hollaway,  97  Mo.  628,  11  S.  W.  233, 
10  Am.  St.  Rep.  339;  Herrick  v. 
Lynch,  150  111.  283,  37  N.  E.  221,  bills 
for  partition  were  retained  for  pur- 
poses of  an  account. 

Bills  to  enforce  or  foreclose  liens 
are  frequently  retained  for  money 
judgments.  Evans  v.  Kelly,  49  W.  Va. 
181,  38  S.  E.  497;  Fidelity  Tr.  &  G. 
Co.  V.  Fowler  Water  Co.,  113  Fed. 
5G0;  Albrecht  v.  C.  C.  Foster  Lumber 
Co.,  126  Ind.  318,  26  N.  E.  157; 
Risen  V.  Moon,  91  Va.  384,  22  S.  E. 
165.  In  Hathaway  v.  Hagan,  64  Vt. 
135,  24  Atl.  131,  a  bill  was  brought 
to  foreclose  a  mortgage.  The  court 
found  that  the  notes  had  been  more 
than  paid,  and  retained  jurisdiction 
to  relieve  the  defendant  on  a  cross- 
bill. 

Likewise,  the  jurisdiction  will  be 
retained  when  a  bill  is  brought  to  re- 
deem. Schmid  v.  Lisiewski,  53  N.  J. 
Eq.  670,  31  Atl.  603;  Vick  v.  Beverly, 
112  Ala.  458,  21  South.  .325;  Middle 
States  L.,  B.  &  C.  Co.  v.  Hagerstown, 
M.  Sl  U.  Co.,  82  Md.  506,  33  Atl.  886. 
A  bill  to  discharge  a  mortgage  was 
retained  to  award  the  surplus  due 
from  the  mortgagee  for  rents.  Whet- 
stone V.  IMcQueen,  137  Ala.  301,  34 
South.  229. 


In  Walters  v.  Farmers'  Bank,  76 
Va.  12,  it  is  held  that  when  a  suit  is 
brought  on  a  note  of  a  married  woman 
to  charge  her  separate  estate,  and  her 
indorser  is  joined  as  defendant,  if  for 
any  cause  developed  in  the  suit  re- 
course against  her  separate  estate 
fails,  the  plaintiff  may  have  relief 
against  the  indorser.  In  Beecher  v. 
Lewis,  84  Va.  630,  it  was  said  that 
the  doctrine  was  expressly  applicable 
where  there  are  accounts  to  be  dis- 
covered and  examined;  and  that 
where  jurisdiction  has  once  been  ac- 
quired to  settle  accounts  arising  un- 
der a  trust  deed,  the  court  may  ren- 
der a  personal  decree  for  the  balance 
due  from  the  debtor  beyond  the  sum 
realized  by  the  sale  under  the  trust 
deed. 

In  the  following  miscellaneous 
cases  the  principle  is  applied:  Bank 
of  Stockham  v.  Alter,  61  Nebr.  359, 
85  N.  W.  300;  Kirschbaum  v.  Coon, 
(Va.),  25  S.  E.  658;  Hotchkiss  v. 
Fitzgerald  P.  P.  P.  Co.,  41  W.  Va. 
357,  23  S.  E.  576;  Hanly  v.  Watter- 
son,  39  W.  Va.  214,  19  S.  E.  536; 
Schwab  V.  Frisco  M.  &  M.  Co.,  21 
Utah,  258,  60  Pac.  940;  Swingle  v. 
Brown  (Tenn.  Ch.  App.),  48  S.  W. 
347;  Evins  v.  Cawthon,  132  Ala.  184, 
31  South.  441;  Vicksburg  &  Y.  C. 
Tel.  Co.  v.  Citizens'  Tel.  Co.,  79  Miss. 


353 


JURISDICTION    EMBRACES    WHOLE    MATTER. 


§    242 


variety  of  circumstances,  litigations,  and  reliefs.  By 
virtue  of  its  operation,  and  in  order  to  promote  justice,  the 
court,  having  obtained  jurisdiction  of  a  controversy  for 
some  purpose  clearly  equitable,  has  often  extended  its 
judicial  cognizance  over  rights,  interests,  and  causes  of 
action  which  were  purely  legal  in  their  nature,  and  has 
awarded  remedies  which  could  have  been  adequately  be- 
stowed by  a  court  of  law.  This  same  grand  principle  is 
one  of  the  fundamental  and  essential  thoughts  embodied  in 
the  ' '  reformed  system  of  procedure, ' '  which  first  appeared 


341,  89  Am.  St.  Rep.  656,  30  South. 
725 ;  Whipple  v.  Farrar,  3  Mich.  436, 
64  Am.  Dec.  99;  Reyburn  v.  Mitchell, 
106  Mo.  365,  16  S.  W.  592,  27  Am.  St. 
Rep.  350;  Vaught  v.  Meador,  99  Va. 
569,  39  S.  E.  225,  86  Am.  St.  Rep. 
a08;  Gleason  &  Bailey  Mfg.  Co.  v. 
Hoffman,  168  111.  25,  48  N.  E.  143; 
Pinkum  v.  City  of  Eau  Claire,  81 
Wis.  301,  51  N.  W.  550;  Balsley  v. 
Balsley,  116  N.  C.  472,  21  S.  E.  954; 
Williamson  v.  Moore,  101  Fed.  322; 
Olson  V.  Lamb,  61  Nebr,  484,  85  N.  W. 
397;  Cunningham  v.  City  of  Cleve- 
land, 98  Fed.  657,  39  C.  C.  A.  211; 
Bath  Paper  Co.  v.  Langley,  23  S.  C. 
129;  Watson  v.  Watson  (Tenn.  Ch. 
App.),  57  S.  W.  385;  Nichol  v.  Stew- 
art, 36  Ark.  612;  Central  Trust  Co. 
V.  Wabash,  St.  L.  &  P.  Ry.  Co.,  29 
Fed.  546;  Little  Rock,  etc.,  R.  R.  Co, 
V.  Perry,  37  Ark.  164;  Buchanan  v. 
Origgs,  20  Nebr.  165,  29  N.  W.  297; 
Winton's  Appeal,  97  Pa.  St.  385 ;  Con- 
ger V.  Cotton,  37  Ark.  286;  Marine, 
etc.,  Mfg.  Co.  V.  Bradley,  105  U.  S. 
182;  Swift  V.  Dewey,  20  Nebr,  lo7, 
29  N.  W.  254;  Ober  v.  Gallagher,  93 
U,  S.  199;  Howards  v,  Selden,  4 
Hughes,  310,  5  Fed.  465,  473;  City  of 
Centerville  v.  Fidelity  Trust  &  Guar- 
anty Co,,  118  Fed,  332,  55  C,  C,  A. 
348 ;  Barrett  v.  Twin  City  Power  Co., 
118  Fed.  861;  Twin  City  Power  Co. 
V.   Barrett,    126    Fed.    302;    State   v. 

Vol.  1  —  23 


Fredlock,  52  W,  Va,  232,  94  Am.  St. 
Rep,  932,  43  S,  E,  153, 

In  Norton  v.  Sinkhorn,  61  N,  J, 
Eq,  508,  48  Atl,  822;  modified,  63 
N,  J.  Eq.  313,  50  Atl.  506,  it  was  held 
that  a  court  of  equity  will  not  give  a 
decree  for  unliquidated  damages.  The 
court  ordered  the  case  retained  until 
the  damages  could  be  assessed  at  law. 

"  When  a  complainant  files  a  bill 
that  properly  falls  under  one  or  an- 
other of  the  heads  of  ordinary  chan- 
cery jurisdiction,  the  right  of  the  de- 
fendant to  maintain  a  cross-bill  that 
is  germane  to  the  original  bill  is  not 
dependent  upon  the  validity  of  the 
claim  made  in  the  original  bill." 
Biegler  v.  Merchants'  Loan  &  Tr.  Co., 
1«4  111,  197,  45  N,  E.  512.  In  this 
case  the  plaintiff  sought  to  enjoin 
the  collection  of  notes.  The  defend- 
ant set  up  that  he  was  a  fair  pur- 
chaser, and  asked  judgment  for  the 
amount  due.  This  relief  was  given. 
See  also  Pratt  v.  Boody,  55  N.  J,  Eq. 
175,  35  Atl,  1113, 

In  some  jurisdictions  it  is  held  that 
a  bill  will  not  be  retained  for  com- 
plete relief  unless  the  legal  relief  is 
asked  for  in  the  bill,  Hawes  v.  Dobbs, 
137  N,  Y,  465,  33  N,  E.  500;  Din- 
widdle v.  Bell,  95  111.  360.  See  also 
Waldron  v,  Harvey  (W.  Va.),  46 
S.  E,  603. 


§    242  EQUITY    JURISPRUDENCE.  354 

in  1848,  in  the  New  York  Code  of  Civil  Procedure,  has 
since  extended  through  so  many  states  and  territories  of 
this  country  and  colonies  of  Great  Britain,  and  was  substan- 
tially adopted  for  England  in  the  "  Supreme  Court  of 
Judicature  Acts."  That  system  of  procedure,  by  combin- 
ing the  actions  at  law  and  suits  in  equity  into  one  "  civil 
action,"  by  permitting  the  union  of  legal  and  equitable 
primary  rights,  and  interests,  and  causes  of  action  in  the 
one  judicial  proceeding,  and  the  granting  of  legal  and 
equitable  remedies  in  the  one  judgment,  and  by  the  substi- 
tution of  many  equity  rules  concerning  the  prosecution  of 
suits  in  place  of  the  arbitrary  rules  of  the  law  regulating 
the  conduct  of  actions,  has  greatly  enlarged  the  operation 
and  increased  the  efficiency  of  the  general  doctrine  under 
discussion.  Wherever  the  true  spirit  of  the  reformed  pro- 
cedure has  been  accepted  and  followed,  the  courts  not  only 
permit  legal  and  equitable  causes  of  action  to  be  joined,  and 
legal  and  equitable  remedies  to  be  prayed  for  and  obtained, 
but  will  grant  purely  legal  reliefs  of  possession,  compen- 
satory damages,  pecuniary  recoveries,  and  the  like,  in  ad- 
dition to  or  in  place  of  the  specific  equitable  reliefs  de- 
manded in  a  great  variety  of  cases  which  would  not  have 
come  within  the  scope  of  the  general  principle  as  it  was 
regarded  and  acted  upon  by  the  original  equity  jurisdic- 
tion, and  in  which,  therefore,  a  court  of  equity  would  have 
refrained  from  exercising  such  a  jurisdiction.*  The  full 
discussion  of  this  great  change  wrought  by  the  modern 

(a)   Cited  in  Thomson  v.  Locke,  66  N.    W.     504;     Evans    v.    McConnell 

Tex.    383;    Swope   v.   Missouri   Trust  (Iowa),    63    N.    W.    570;    Disher    v. 

Co.,  20  Tex.  Civ.  App.  133,  62  S.  W.  Disher,  45  Nebr.  100,  63  N.  W.  368; 

947 ;     quoted,    Armstrong     v.    Mayer  Green    Bay    Lumber    Co.    v.    Miller 

(Nebr.),    95    N.    W.    51.      See    also  (Iowa),    62    N.    W.    742;    Turner    v. 

Kayser  v.   Mongham,  8   Colo.   232,   6  Newman    (Ky.),  39  S,  W.  504;   Val- 

Pac.  803;  Danielson  v.  Gude,  11  Colo.  entine   v.    Richards,    126   N.   Y.   272, 

87,  17  Pac.  283;  Bullion,  B.  &  C.  Min.  27  N.  E.  255;  Hull  v.  Bell,  54  Ohio, 

Co.  v.  Eureka  Hill  Min.  Co.,  5  Utah,  228,  43  N.  E.  584;  Hanna  v.  Reeves, 

3,  11  Pac.  515;  Giant  Powder  Co.  v.  22  Wash.  6,  60  Pac.  62;  Field  v.  Holz- 

San  Diego  Flume  Co.,  78  Cal.  193,  20  man,  93  Ind.  205;   Watson  v.  Sutro, 

Pac.  419;  Murtha  v.  Curley,  90  N.  Y.  86  Cal.  500,  24  Pac.  172,  25  Pac.  64. 
373;    Larrabee  v.   Given    (Nebr.),   91 


355  JURISDICTION    EMBRACES    WHOLE    MATTER.  §    242! 

legislation  is  postponed  to  a  subsequent  chapter;  I  shall 
merely  place  in  the  foot-note  a  few  illustrative  cases  as 
examples  of  the  manner  in  which  the  scope  of  the  equitable 
jurisdiction  has  been  thus  enlarged.^ 

iLaub  V.  Buckmiller,  17  N.  Y.  620,  626;  Lattin  v.  McCarty,  41  N.  Y. 
107,  109,  110;  Davis  v.  Lamberton,  56  Barb.  480,  483;  Bro\vii  v.  Brown^ 
4  Rob.  (N.  Y.)  688,  700,  701;  Welles  v.  Yates,  44  N.  Y.  525;  Cone  v.  Niagarai. 
Ins.  Co.,  60  N.  Y.  619,  3  Thomp.  &  C.  33;  Anderson  v.  Hunn,  5  Hun,  79;  N.  Y., 
Ice  Co.  V.  N.  W.  Ins.  Co.,  23  N.  Y.  357,  359;  Cahoon  v.  Bank  of  Utica,  7 
N.  Y.  486;  Broiestedt  v.  South  Side  R.  R.,  55  N.  Y.  220,  222;  Linden  v. 
Hepburn,  3  Sand.  668,  671;  Bidwell  v.  Astor  Ins.  Co.,  16  N.  Y,  263,  267; 
Phillips  V.  Gorham,  17  N.  Y.  270;  Caswell  v.  West,  3  Thomp.  &  C.  383; 
Graves  v.  Spier,  58  Barb.  349,  383,  384;  Sternberger  v.  McGovern,  56  N. 
Y,  12;  Marquat  v.  Marquat.  12  N.  Y.  336;  Barlow  v.  Scott,  24  N.  Y.  40,. 
45;  Emery  v.  Pease,  20  N.  Y.  62,  64;  Bradley  v.  Aldrich,  40  N.  Y.  504,  100^ 
Am.  Dec.  528;  Walker  v.  Sedgwick,  8  Cal.  398;  Gray  v.  Dougherty,  25  Cal. 
266;  Henderson  v.  Dickey,  50  Mo.  161,  165;  Guernsey  v.  Am.  Ins.  Co.,  17" 
Minn.  104,  108;  Montgomery  v.  McEwen,  7  Minn.  351;  Turner  v.  Pierce, 
34  Wis.  658,  665;  McNeady  v.  Hyde,  47  Cal.  481,  483;  Tenney  v.  State  Bank, 
20  Wis.  152;  Leonard  v.  Logan,  20  Wis.  540,  542;  Foster  v.  Watson,  16- 
B.  Mon.  377,  387;  White  v.  Lyons,  42  Cal.  279,  282.  The  decisions,  how- 
ever, are  not  entirely  xmanimous.  In  some  cases  the  court  has  not  only  re- 
fused to  accept  and  act  upon  the  spirit  of  the  reformed  procedure,  but  has^- 
even,  as  it  would  seem,  failed  to  recognize  the  principle  which  belonged  to 
the  original  jurisdiction  of  equity,  the  principle  that,  having  obtained  a  juris- 
diction for  any  purpose,  the  court  might  and  should  give  full  relief  and 
do  complete  justice.  See  Hudson  v.  Caryl,  44  N.  Y.  553;  Supervisors  v. 
Decker,  30  Wis.  624,  626-630;  Noonan  v.  Orton,  21  Wis.  283;  Horn  v.  Lud- 
dington,  32  Wis.  73;  Dickson  v.  Cole,  84  Wis.  621,  625;  Turner  v.  Pierce,  34- 
Wis.  658,  665;  Deery  v.  McClintock,  31  Wis.  195;  Lawe  v.  Hyde,  39  Wis. 
345;  Cord  v.  Lackland,  43  Mo.  139;  Bobb  v.  Woodward,  42  Mo.  482;  Pey- 
ton V.  Rose,  41  Mo.  257,  and  other  similar  cases  in  Missouri,  which  were 
all,  however,  overruled  in  the  later  case  of  Henderson  v.  Dickey,  50  Mo. 
161,  165,  in  which  the  court  adopted  and  acted  upon  the  true  spirit  and  io^ 
tent  of  the  reformed  procedure. 


§    243  EQUITY   JURISPRUDENCE,  356 


SECTION   IV. 

THE   DOCTRINE   THAT  JURISDICTION   EXISTS   IN  ORDER  TO   PRE- 
VENT  A  JVIULTIPLICITY  OF  SUITS. 

ANALYSIS. 

f  243.  The  doctrine  applies  to  both  kinds  of  jurisdiction. 
§  244.  The  questions  to  be  examined  stated. 

§  245.  Four  possible  classes  of  cases  to  which  the  doctrine  may  apply. 
f  S  246-248.  "  Bills  of  peace,"  rationale  of,  and  examples. 

§  248.  Bills  "  to  quiet  title  "  explained. 
J5  249-251.  Rationale  of  the  doctrine  examined  on  principle. 

[§  251%.  Jurisdiction  not  exercised  when  that  would  be  ineffectual;  sim- 
plifying of  the  issues  essential. 
S  251%.  There  must  be  a  practical  necessity  for  the  exercise  of  the  juris- 
diction.] 
$§  252-261.  Examination  of  the  doctrine  upon  judicial  authority. 

§  252.  First  class. 
S§  253,  254.  Second  class. 
IS  255-261.  Third  and  fourth  classes. 

§  256.  Community  of  interest:     "  Fisheries  Case";  "  Case  of  the  Duties." 
I  257.  Where  proprietors  of  distinct  tracts  of  land   have  been  injured 

by  one  Avrong. 
S  258.  Where  proprietors  of  distinct  tracts  of  land  have  been  relieved 
from  illegal  local  assessments. 
|§  259, 260.  General   rule   as   to   relief   from   illegal    taxes,   assessments,   and 
public  burdens,  on  the  ground  of  multiplicity  of  suits. 
§  261.  Other  special  cases  of  the  third  and  fourth  classes. 
}§  262-266.  Examination  of  opposing  decisions;  conclusions  reached  by  such 
decisions. 
S  263.  In  the  first  and  second  classes. 
(§  264-266.  In  the  third  and  fourth  classes. 
S§  265,  266.  In  cases  of  illegal  taxes  and  other  public  burdens. 
|§  267-270.  Conclusions  derived  from  the  entire  discussion. 
i§  268-270.  Ditto  as  to  the  third  and  fourth  classes. 

IS  271-274.  Enumeration  of  cases  in  which  the  jurisdiction  to  avoid  a  multi- 
plicity of  suits  has  been  exercised. 
i  271.  Cases  of  the  first  class. 
i  272.  Cases  of  the  second  class. 
S  273.  Cases  of  tlic  third  class. 
S  274.  Cases  of  the  fourth  class. 
S  275.  The  jurisdiction  based  upon  statute. 

§  243.'  Applies  to  Both  Kinds  of  Jurisdiction. —  The  doc- 
trine that  a  court  of  equity  may  take  cognizance  of  a  con- 

<a)  This  Rpction  is  cited  in  Liver-  Land  Grant  Co.  (C.  C.  A.),  50  Fed. 
pool  A  L.  <fe  a.  Ins.  Co.  v.  Cliinic,  83  674;  Kellogg  v.  Chenango  Valley 
Fed.    160,    107;    Prctcca    v.   Maxwell       Sav.    Bk.,    42    N.    Y.    Supp.    379,    11 


357  TO   PREVENT   A   MULTIPLICITY    OF    SUITS.  §    243 

troversy,  determine  the  rights  of  all  the  parties,  and  grant 
the  relief  requisite  to  meet  the  ends  of  justice,  in  order  to 
prevent  a  muUiplicitf/  of  suits,  has  already  been  briefly  men- 
tioned in  a  preceding  section  upon  the  "  concurrent  juris- 
diction." The  same  remarks  which  were  made  at  the  com- 
mencement of  the  last  section  concerning  the  general  prin- 
ciple that  when  a  court  of  equity  has  acquired  jurisdiction 
over  part  of  a  matter,  or  over  a  matter  for  some  particular 
purpose,  it  may  go  on  and  determine  the  whole  controversy 
and  confer  complete  relief,  apply  with  equal  truth  and 
force  to  the  doctrine  now  under  consideration,  and  need  not 
therefore  be  repeated,^  Like  that  general  principle,  the 
**  prevention  of  a  multiplicity  of  suits  "  produces  a  mate- 
rial effect  upon  both  the  concurrent  and  the  exclusive  juris- 
dictions. It  is  sometimes  one  of  the  very  foundations  of 
the  concurrent  jurisdiction, —  an  efficient  cause  of  its  exist- 
ence. In  fact,  the  "  multiplicity  of  suits  "  which  is  to  be 
prevented  constitutes  the  very  inadequacy  of  legal  methods 
and  remedies  which  calls  the  concurrent  jurisdiction  into 
being  under  such  circumstances,  and  authorizes  it  to  adju- 
dicate upon  purely  legal  rights,  and  confer  purely  legal 
reliefs.^  On  the  other  hand,  the  prevention  of  a  multiplicity 
of  suits  is  the  occasion  for  the  exercise  of  the  exclusive 

1  See  ante,  §  181. 

App.  Div.  458;  Golden  v.  Health  De-  tinguishing      the      "third      class;" 

partment,    47    N.    Y.    Supp.    623,    21  Hughes  v.  Hannah,  39  Fla.  356,  379, 

App.  Div.  420;  State  v.  Sunapee  Dam  22      South.      613;      Waddingham     v. 

Co.   (N.  H.),  55  Atl.  899;   Dennis  v.  Robledo,  6  N.  M.  347,  28   Pac.  663; 

Mobile   &   Montgomery   R'y   Co.,    137  Bradley  v.  Bradley,  165  N.  Y.  183,  58 

Ala.  649,  657,  35  South.  30,  97  Am.  N.    E.    887;    McConnaughy    v.    Pen- 

Bt.  Rep.  69,  72.    The  chapter  is  cited  noyer,  43  Fed.  342;  Muncie  Nat.  Gas 

generally    in   Hale    v.   Allinson,    188  Co.  v.  City  of  Muncie,  160  Ind.  97,  66 

U.  S.  56,  23  Sup.  Ct.  244,  a  case  recog-  N.  E.  436;  Turner  v.  City  of  Mobile, 

nizing  but  distinguishing  the  author's  135  Ala.  73,  33  South.  133,  140. 

"fourth    class;"    Pollock  v.  Okolona  (b)  Quoted,  Louisville,  N.  A.  &  C. 

Bav.  Inst.,  61  Miss.  293,  a  case  recog-  R.  R.  Co.  v.  Ohio  Val.,  I.  &  C.  Co.,  57 

nizing   the   author's   "fourth   class;"  Fed.  42,  45;  Edgerton  v.  Edgerton,  12 

Van   Auken   v.   Dammeier,    27    Oreg.  Mont.   122,  29  Pac.  966,  33  Am.  St. 

150,  40  Pac.  89,  recognizing  but  dis-  Rep.  557,  16  L.  R.  A.  94. 


§    244  EQUITY    JURISPRUDENCE.  358 

jurisdiction.  The  multiplicity  of  suits  to  be  avoided,  which 
are  generally  actions  at  law,""  shows  that  the  legal  remedies 
are  inadequate,  and  cannot  meet  the  ends  of  justice,  and 
therefore  a  court  of  equity  interferes,  and  although  the  pri- 
mary rights  and  interests  of  the  parties  are  legal  in  their 
nature,  it  takes  cognizance  of  them,  and  awards  some  spe- 
cific equitable  remedy,  which  gives,  perhaps  in  one  proceed- 
ing, more  substantial  relief  than  could  be  obtained  in  nu- 
merous actions  at  law.  This  is  the  true  theory  of  the  doc- 
trine in  its  application  to  the  two  jurisdictions. 

§  244.  Questions  Stated.* —  The  general  and  vague  state- 
ment, that  equity  will  interfere  and  take  cognizance  of  a 
matter  in  order  to  prevent  a  multiplicity  of  suits,  is  made 
in  innumerable  judicial  dicta,  and  the  general  doctrine  is 
•asserted  in  many  decisions.  But  when  we  inquire  what  is 
the  exact  extent  of  this  doctrine,  in  what  kinds  and  classes 
of  cases  is  a  court  of  equity  empowered  to  exercise  its  juris- 
diction and  administer  reliefs,  in  order  to  prevent  a  multi- 
plicity of  suits,  we  shall  find  not  only  a  remarkable  uncer- 
tainty and  incompleteness  in  the  judicial  utterances,  but 
•even  a  direct  conflict  of  decisions.  Indeed,  the  difficulty  is 
still  more  fundamental.  The  courts  are  not  only  at  vari- 
ance with  respect  to  the  particular  classes  of  cases  in  which 
the  doctrine  should  be  applied,  and  their  jurisdiction 
thereby  asserted,  but  they  seem  also  to  be  unsettled  even 
with  respect  to  the  meaning,  theory,  or  rationale  of  the 
doctrine  itself  as  a  foundation  of  their  jurisdiction  or  an 
occasion  for  its  exercise.  That  this  language  does  not  mis- 
represent the  attitude  of  the  courts  will  most  clearly  appear 
from  decisions  cited  in  subsequent  paragraphs.  It  is  a  mat- 
ter of  great  practical  importance  to  end,  if  possible,  this 
condition  of  doubt  and  uncertainty.  I  purpose,  therefore, 
so  far  as  I  may  be  able,  to  ascertain  and  explain  the  true 
meaning  and  rationale  of  the  doctrine  concerning  the  pre- 

(c)  Cited   and   explained,   Allegany  are  cited  in  American  Cent.  Ins.  Co. 

A   K.    R.    R.    Co.    V.    Woidonfcld,    25  v.  Landau,  50  N.  J.  Eq.  513,  3d  Atl. 

N.  Y.  Supp.  71,  70,  5  MiHc.  Rep.  4.3.  400,  a  case  belonging  in  the  author's 

(a)  Thia  and  the  following  aectiona  "  tliird  class." 


359  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    245 

vention  of  a  multiplicity  of  suits  as  a  source  or  an  occasion 
of  the  equity  jurisdiction ;  to  determine  upon  principle,  and 
from  the  weight  of  judicial  authority,  the  extent  of  its 
operation,  and  the  limits  which  have  been  placed  upon  it; 
and  finally,  to  describe  the  various  kinds  and  classes  of 
cases  in  which  the  equity  jurisdiction  may  or  may  not  be 
exercised  in  pursuance  of  this  doctrine. 

§  245.  Possible  Conditions  in  Which  the  Doctrine  may  Apply.* 
—  It  will  aid  us  in  reaching  the  true  theory  as  well  as 
in  determining  the  extent  and  limitations  of  the  doctrine, 
if  we  can  fix  at  the  outset  all  the  possible  conditions  in 
which  a  multiplicity  of  suits  can  arise,  and  can  thus  fur- 
nish a  source  of  or  occasion  for  the  equity  jurisdiction  in 
their  prevention  by  settling  all  the  controversy  and  all  the 
rights  in  one  single  judicial  proceeding.  All  these  possible 
conditions  may  be  reduced  to  the  four  following  classes: 
1.  Where,  from  the  nature  of  the  wrong,  and  from  the  set- 
tled rules  of  the  legal  procedure,  the  same  injured  party, 
in  order  to  obtain  all  the  relief  to  which  he  is  justly  en- 
titled, is  obliged  to  bring  a  number  of  actions  against  the 
same  wrong-doer,  all  growing  out  of  the  one  wrongful  act 
and  involving  similar  questions  of  fact  and  of  law.  To 
this  class  would  belong  cases  of  nuisance,  waste,  continued 
trespass,  and  the  like.''  2.  Where  the  dispute  is  between 
two  individuals,  A  and  B,  and  B  institutes  or  is  about  to 
institute  a  number  of  actions  either  successively  or  simul- 
taneously against  A,  all  depending  upon  the  same  legal 
questions  and  similar  issues  of  fact,  and  A  by  a  single 
equitable  suit  seeks  to  bring  them  all  within  the  scope  and 
effect  of  one  judicial  determination.  A  familiar  example 
of  one  branch  of  this  class  is  the  case  where  B  has  brought 
repeated  actions  of  ejectment  to  recover  the  same  tract  of 

(a)  This  section  is  cited  generally  v.  Maxwell  Land  Grant  Co.,  1  C.  C.  A. 
in  M'Mullin's  Adm'r  v.  Sanders,  79  607,  50  Fed.  674;  Golden  v.  Health 
Va.  356,  364.  Sections  245-273  are  Department,  47  N.  Y.  Supp.  623,  21 
cited  generally  in  Louisville  &  N.  R.  App.  Div.  420;  Warren  Mills  v.  X.  0. 
Co.  V.  Smith  (C.  C.  A.),  128  Fed.  Seed  Co.,  65  Miss.  391,  4  South.  298. 
I,  6.  7  Am.  St.  Rep.  671,  cases  of  this  class. 

(b)  TTiis  section  is  cited  in  Preteca 


§    245  EQUITY    JUKISPRUDENCE.  360 

land  in  A's  possession,  and  A  finally  resorts  to  a  suit  in 
equity  by  which  his  own  title  is  finally  established  and 
quieted,  and  all  further  actions  of  ejectment  by  B  are  en- 
joined. 3.  Where  a  number  of  persons  have  separate  and 
indi^ddual  claims  and  rights  of  action  against  the  same 
party.  A,  but  all  arise  from  some  common  cause,  are 
governed  by  the  same  legal  rule,  and  involve  similar  facts, 
and  the  whole  matter  might  be  settled  in  a  single  suit 
brought  by  all  these  persons  uniting  as  co-plaintiffs,  or  one 
of  the  persons  suing  on  behalf  of  the  others,  or  even  by  one 
person  suing  for  himself  alone.*^  The  case  of  several 
owners  of  distinct  parcels  of  land  upon  which  the  same 
illegal  assessment  or  tax  has  been  laid  is  an  example  of  this 
class.  4.  Where  the  same  party.  A,  has  or  claims  to  have 
some  common  right  against  a  number  of  persons,  the  estab- 
lishment of  which  would  regularly  require  a  separate  action 
brought  by  him  against  each  of  these  persons,  or  brought 
by  each  of  them  against  him,  and  instead  thereof  he  might 
procure  the  whole  to  be  determined  in  one  suit  brought  by 
himself  against  all  the  adverse  claimants  as  co-defendants.'* 
It  should  be  observed  in  this  connection  that  the  prevention 
of  a  multiplicity  of  suits  as  a  ground  for  the  equity  juris- 
diction does  not  mean  the  complete  and  absolute  interdic- 
tion or  prevention  of  any  litigation  concerning  the  matters 

(c)  Quoted,   Pennefeather  v.   Balti-  pool  &  L.  &  G.  Ins.  Co.  v.  Clunie,  S& 

more  Steam  Packet  Co.,  58  Fed.  481;  P'ed.  IGO,  167;  Sullivan  Timber  Co.  v. 

Boyd   V.    Schneider    (C.   C.   A.),    131  City   of   Mobile,    110    Fed.    186;    Vir- 

Fed.    223,    reversing    124    Fed.    239;  ginia-Carolina  Chemical  Co.  v.  Home 

Washington  Co.  v.  Williams,  111  Fed.  Ins.  Co.,  113  Fed.   1,  5,  cases  of  this- 

801,  815,  49  C.  C.  A.  621,  dissenting  class. 

opinion  of  Sanborn,  Cir.  J.;  Lovctt  v.  (d)  Tliia  section  is  cited  in  De  For- 

Prentice,  44  Fed.  459;  Osborne  v.  Wis-  est  v.  Thompson,  40  Fed.  375;  Lasher 

consin   Cent.  R.  Co.,  43   Fed.  824,  by  v.  McCrocry,  66   Fed.  834,  843;   New 

Harlan,  J.;   City  of   Chicago  v.   Col-  York  Life  Ins.  Co.  v.  Beard,  80  Fed. 

line,  175  HI.  44.5,  51  N.  E.  907;  Amer-  66,     cases     of     the     "  fourth     class." 

ican  Cent.  Ins.  Co.  v.  Landau,  56  N.  J.  Quoted,    City   of   Chicago    v.    Collins, 

Eq.  513,  39  Atl.  400;  Turner  v.  City  175  HI.  445,  51  N.  E.  907,  49  L.  R.  A. 

of  Mobilo,  1.35  Ala.  73,  33  South.  133;  408;    Boyd  v.   Schneider    (C.   C.  A.)» 

Sny(hT  v.  Harding  (Wash.),  75  Pac.  131  Fed.  223,  reversing  124  Fed.  239, 
8 J '2.     Tliia  section  ia  cited   in   Liver- 


361  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    246 

in  dispute,  but  the  substitution  of  one  equitable  suit  in  place 
of  the  other  kinds  of  judicial  proceeding,  by  means  of  which 
the  entire  controversy  may  be  finally  decided.  The  further 
discussion  will  involve  the  inquiry  whether  the  doctrine  in 
question  is  applied  to  all  of  the  foregoing  classes  of  cases; 
and  if  so,  what  are  the  extent  and  limitations  of  its  opera- 
tion in  each  class?  In  pursuing  this  discussion,  I  shall 
examine,  first,  in  order,  the  rationale,  extent,  and  general 
operations  of  the  doctrine;  then  the  limitations  upon  it; 
and  finally,  the  particular  instances  of  its  application, 
arranged  according  to  the  foregoing  classes. 

§  246.  Bills  of  Peace. —  The  earliest  instances  in  which  the 
court  of  chancery  exercised  its  jurisdiction,  avowedly  upon 
the  ground  of  preventing  a  multiplicity  of  suits,  appear 
to  have  been  called  '*  bills  of  peace,"  of  which  there  were 
two  distinct  kinds.  One  of  these  was  brought  to  establish 
a  general  right  between  a  single  party  on  the  one  side,  and 
numerous  persons  claiming  distinct  and  individual  interests 
on  the  other,  plainly  corresponding,  in  part  at  least,  with 
the  third  and  fourth  classes  mentioned  in  the  preceding 
paragraph.  The  other  kind  was  permitted  to  quiet  the 
complainant's  title  to  and  possession  of  land,  and  to  restrain 
any  further  actions  of  ejectment  to  recover  the  premises  by 
a  single  adverse  claimant,  after  several  successive  actions 
had  already  been  prosecuted  without  success,  on  the  ground 
that  the  title  could  never  be  finally  established  by  an  in- 
definite repetition  of  such  legal  actions,  and  justice 
demanded  that  complainant  should  be  protected  against 
vexatious  litigation.  This  form  of  the  original  bill  of  peace 
corresponds  to  the  first  branch  of  the  second  class  described 
in  the  preceding  paragraph.^  * 

1  1  Spence's  Eq.  Jur.  C57,  G58;  Jeremy's  Eq.  Jur.  344-347;  Adams's  Equity, 
199-202;  6th  Am.  ed.  406-410. 

(a)  The  text  is  cited  in  Boston  &  tween  the  two  classes  of  bills  of  peace 

Montana    C.  C.  &  S.  M.  Co.  v.  Mon-  is  clearly  stated  in  Sharon  v.  Tucker, 

tana  Ore  P.  Co.,   188  U.  S.  632,  23  144  U.  S.  542,  12  Sup.  Ct.  720,  by 

Sup.    Ct.    434.      The    distinction    be-  Field,  J. 


§    247  EQUITY   JURISPRUDENCE.  362 

§  247.  One  of  the  most  frequent  purposes  of  such  suits 
to  establish  a  general  right,  in  earlier  periods,  seems  to 
have  been  the  ascertaining  and  settling  the  customs  of  a 
manor,  where  they  were  in  dispute  between  the  lord  of  a 
manor  and  his  tenants  or  copyholders,  or  between  the 
tenants  of  two  different  manors.  A  bill  might  be  filed  on 
behalf  of  the  whole  body  of  tenants  or  copyholders  of  a 
particular  manor  against  their  lord,  or  perhaps  against  the 
lord  or  tenants  of  another  manor;  or  it  might  be  filed  by 
the  lord  himself  against  his  tenants;  and  by  the  decree  in 
such  suit,  questions  concerning  various  rights  of  common, 
or  concerning  fines  or  other  services  due  to  the  lord,  or 
other  like  matters  affecting  all  the  parties,  could  be  finally 
established,  which  would  otherwise  require  perhaps  a 
multitude  of  individual  actions.  From  this  early  purpose 
the  jurisdiction  was  easily  extended  so  as  to  embrace  a 
^reat  number  of  different  but  analogous  objects.^ 

1  1  Spence's  Eq.  Jur.  657.  In  Lord  Tenham  v.  Herbert,  2  Atk.  483,  Lord 
Hardwicke  thus  described  these  bills:  "It  is  certain  that  where  a  man  seta 
up  a  general  and  exclusive  right,  and  where  the  persons  who  controvert  it 
are  very  numerous,  and  he  cannot  by  one  or  two  actions  at  law  quiet  that 
right,  he  may  come  into  this  court  first,  which  is  called  a  bill  of  peace, 
and  the  court  will  direct  an  issue  to  determine  the  right,  as  in  disputes 
between  lords  of  manors  and  their  tenants,  and  between  tenants  of  one 
manor  and  another;  for  in  these  cases  there  would  be  no  end  of  bringing  ac- 
tions of  trespass,  since  each  action  would  determine  only  the  particular 
right  in  question  between  the  plaintiflf  and  the  defendant."  See  also  the 
same  proposition  by  Lord  Eldon,  in  Hanson  v.  Gardiner,  7  Ves.  309,  310. 
It  is  not  my  purpose  in  this  place  to  enter  into  any  full  discussion  of  "  bills 
of  peace."  I  shall  therefore  merely  add  some  cases  as  examples  of  the  ex- 
tension of  the  doctrine,  and  of  its  application  to  establish  general  rights  of 
various  kinds.  Suits  have  been  sustained  by  a  lord  against  tenants  of  the 
manor,  and  by  tenants  against  their  lord,  to  establish  common  and  similar 
rights,  or  to  establish  the  amount  of  fines  payable  by  copyhold  tenants ;  by 
a  party  in  possession  against  adverse  claimants  to  establish  a  toll,  or  right 
to  the  profits  of  a  fair;  by  a  parson  against  his  parishioners  for  tithes;  and 
by  parishioners  against  their  parson  to  establish  a  modus,  etc.:  Cowper  v. 
Clerk,  3  P.  Wms.  157;  Midlcton  v.  Jackson.  1  Ch.  18;  Powell  v.  Powia.  1 
Lon.  &  Jer.  159;  Brown  v.  Vermudcn,  1  Cas.  Ch.  272;  Rudgo  v.  Hopkins, 
2  p]q.  Cas.  Abr.,  p.  170,  pi.  27;  IIow  v.  Tenants  of  Bromsgrove,  1  Vern. 
22;  Pawlet  v.  Ingres,  1  Vern.  308;  Ewclme  Hospital  v.  Andover,  1  Vern.  266; 
Wcckca  V.  Slake,  2  Vern.  301;  Artliington  v.  Fawkes,  2  Vern.  356;  Conyera 
v.   Abergavenny,    1    Atk.   284,  285;    Poor  v.   Clarke,   2   Atk.   515;    Hanson  v. 


363  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    248 

§  248.  Bills  to  Quiet  Title. —  The  grounds  and  purposes  of 
the  second  form  of  the  *'  bill  of  peace,"  as  it  was  originally 
adopted,  are  very  clearly  stated  by  Lord  Redesdale  in  his 
well-known  and  authoritative  treatise  upon  equity  plead- 
ings: ''  In  many  cases,  the  courts  of  ordinary  jurisdiction 
admit,  at  least  for  a  certain  time,  of  repeated  attempts  to 
litigate  the  same  question.  To  put  an  end  to  the  oppression 
occasioned  by  the  abuse  of  this  privilege,  the  courts  of 
equity  have  assumed  a  jurisdiction.  Thus  actions  of  eject- 
ment, which,  as  now  used,  are  not  part  of  the  old  law,  have 
become  the  usual  mode  of  trying  titles  at  the  common  law, 
and  judgments  in  those  actions  not  being  conclusive,  the 
court  of  chancery  has  interfered,  and  after  repeated  trials 
and  satisfactory  determinations  of  the  question,  has 
granted  perpetual  injunctions  to  restrain  further  litigation, 
and  thus  has  in  some  degree  put  that  restraint  upon  litiga- 
tion which  was  the  policy  of  the  ancient  law  in  real  ac- 
tions." ^ ' 

Gardiner,  7  Ves.  305,  309,  310;  Corporation  of  Carlisle  v.  Wilson,  13  Ves.  279, 
280;  Ware  v.  Horwood,  14  Ves.  32,  33;  Dilley  v.  Doig,  2  Ves.  486;  Duke  of 
Norfolk  V.  Myers,  4  Madd.  83,  117;  Sheffield  Water  Works  v.  Yeomans,  L.  R. 
2  Ch.  8;  Phillips  v.  Hudson,  L.  R.  2  Ch.  243.  Also  suits  by  proprietor  in  pos- 
session claiming  exclusive  right  of  fishery  in  certain  waters,  against  nu- 
merous other  persons  asserting  rights  to  fish  in  the  same  waters  by  separate 
and  independent  claims:  Mayor  of  York  v.  Pilkington,  1  Atk.  282;  Lord 
Tenham  v.  Herbert,  2  Atk.  483;  New  River  County  v.  Graves,  2  Vern.  431,  432. 
Also  a  suit  by  a  municipal  corporation  to  establish  a  common  duty  in  the 
nature  of  a  license  fee  against  a  large  number  of  persons,  among  whom  thei'e 
was  no  privity  of  interest,  but  their  relations  with  each  other  were  wliolly 
separate  and  distinct:  City  of  London  v.  Perkins,  3  Brown  Pari.  Cas.,  Tom- 
lins's  ed.,  602 ;  4  Brown  Pari.  Cas.  157.  But  see  Bouverie  v.  Prentice,  1  Brown 
Ch.  200;  Ward  v.  Duke  of  Northumberland,  2  Anstr.  469. 

iMitford's  (Lord  Redesdale)  Eq.  PI.  143,  144;  1  Spence's  Eq.  Jur.  658. 
This  particular  exercise  of  its  jurisdiction  was  not  finally  established  by 
the  court  of  chancery  without  a  considerable  struggle.  In  one  case,  after 
five   ejectment  trials,   in   all   of   which   a   verdict  was   rendered   in   favor   of 

(a)  Cited  with  approval  in  Bird  v.  relief   in  such   cases   the   concurrence 

Winger,  24  Wash.  269,  64  Pac.  178;  of    three    particulars    was    essential: 

Holland  v.  Challen,   110  U.  S.   15,  3  He  must  have  been  in  possession  of 

Sup.  Ct.  495;  Sharon  v.  Tucker,  144  the  property;  he  must  have  been  dis- 

U.    S.    542,    12    Sup.    Ct.    720.      Per  turbed   in  its   possession  by  repeated 

Field,  J.:    "To  entitle  the  plaintiff  to  actions  at  law;  and  he  must  have  ea- 


§249  EQUITY    JURISPRUDENCE.  364- 

§  249.  Rationale  of  the  Doctrine  on  Principle." —  Having 
thus  seen  the  historical  inception  of  the  doctrine  in  its 
earliest  application  to  suits  for  the  establishment  of  certain 
kinds  of  "  general  rights,"  and  for  the  quieting  of  a  party 'a 
legal  title  by  restraining  further  actions  of  ejectment,  I 

the  complainant,  Lord  Chancellor  Cowper  refused  to  interfere  and  restrairv 
further  actions  at  law;  but  his  decree  was  reversed  and  set  aside  on  appeal 
by  the  House  of  Lords:  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261,  10  Mod.  1,  1 
Brown  Pari.  Cas.  206,  270,  2  Brown  Pari.  Cas.,  Tomlins's  ed.,  217.  The  title 
of  the  complainant  in  equity  must,  of  course,  have  been  satisfactorily  de- 
termined in  his  favor  at  law  before  a  court  of  equity  will  aid  him.  But  if 
his  right  and  title  have  been  thus  determined,  as  the  rule  is  now  well  set- 
tled, a  court  of  equity  will  interfere,  without  regard  to  and  without  requir- 
ing any  particular  number  of  trials  at  law,  whether  two  or  more,  even  after 
one  trial  at  law:  Leighton  v.  Leighton,  1  P.  Wms.  671,  672;  Devonsher  v. 
Newenham,  2  Schoales  &  L.  20S,  209;  Earl  of  Darlington  v.  Bowes,  1  Eden^ 
270-272;  Weller  v,  Smeaton,  1  Cox,  102,  1  Brown  Ch.  573;  Alexander  v. 
Pendleton,  8  Cranch,  462,  468;  Trustees  of  Huntington  v.  NichoU,  3  Johns. 
560,  589-591,  595,  601,  602;  Eldridge  v.  Hill,  2  Johns.  Ch.  281,  282;  Pat- 
terson v.  McCamant,  28  Mo.  210;  Knowles  v.  Inches,  12  Cal.  212,  216  ^ 
Patterson,  etc.,  R.  R.  Co.  v.  Jersey  City,  9  N.  J,  Eq.  434;  Bond  v.  Little,  10  Ga. 
395,  400;  Harmer  v.  Gwynne,  5  McLean,  313,  315. 

tablished  his  right  by  successive  judg-  vexatious  litigation  respecting  the 
ments  in  his  favor.  Upon  these  facts  property,  as  to  prevent  future  litiga- 
appearing  the  court  would  interpose  tion  by  removing  existing  causes  of 
find  grant  a  perpetual  injunction  to  controversy  as  to  its  title.  It  was 
quiet  the  possession  of  the  plaintiff  brought  in  view  of  anticipated  wrongs 
against  any  further  litigation  from  or  mischiefs,  and  the  jurisdiction  of 
the  same  source.  It  was  only  in  this  the  courts  was  invoked  because  tlie 
way  that  adequate  relief  could  be  af-  party  feared  future  injury  to  hi» 
forded  against  vexatious  litigation  rights  or  interests.  Story  Eq.  §  826. 
and  the  irreparable  mischief  which  it  To  maintain  a  suit  of  this  char- 
entailed.  Ad.  Eq.  202;  Pom.  Eq.  Jur.,  acter  it  was  generally  necessary  that 
§  248;  Stark  v.  Starrs,  6  Wall.  409;  the  plaintiff  should  be  in  possession 
Curtis  V.  Sutter,  15  Cal.  259 ;  Ship-  of  the  property,  and,  except  when  tlie 
ley  V.  Rangeley,  Daveis  (3  Ware),  defendants  were  numerous,  th;it  hi^ 
242;  Devonsher  v.  Newenham,  2  title  should  have  been  establislied  at 
Schoales  &  L.  208."  The  opinion  in  law  or  be  founded  on  undisputed  evi- 
Holland  v.  Challen,  supra,  also  states  dence  or  long  continued  possession. 
tlie  distinction  between  "  bills  of  Alexander  v.  Pendleton,  8  Cranch, 
peace"  of  this  class,  and  "bills  quia  462;  Peirsoll  v.  Elliott,  6  Pet.  95j 
timet  "  to  remove  a  cloud  on  title.  Orton  v.  Smith,  18  IIow.  263." 
"A  bill  quia  timet,  or  to  remove  a  (a)  Cited,  AHognny  &  K.  R.  R.  Co. 
cloud  upon  the  title  of  real  estate,  v.  Wcidcnfold,  25  N.  Y.  Supp.  71,  76^ 
diflVrfd  from  a  bill  of  peace  in  that  it  5  Misc.  Rep.  43. 
did  not  bfcck  so  much  to  i)iit  an  end  to 


365  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    250 

shall  endeavor,  before  following  out  its  subsequent  develop- 
ment and  further  applications,  to  examine  more  closely 
into  its  real  meaningj  and  to  ascertain  its  true  rationale 
and  theory.  What  multiplicity  of  suits  is  it  which  a  court 
of  equity  will  prevent?  What  party  must  be  harassed,  or 
incommoded,  or  threatened  with  numerous  litigations,  and 
from  whom  must  such  litigation  actually  and  necessarily 
proceed,  in  order  that  a  court  of  equity  may  take  jurisdic- 
tion, and  prevent  it  by  deciding  all  the  matter  in  one  decree? 
Finally,  how  far  is  the  prevention  of  a  multiplicity  of  suits 
an  independent  source  of  the  equitable  jurisdiction?  Can  a 
court  of  equity  ever  interfere  on  behalf  of  the  plaintiff, 
upon  the  ground  of  preventing  a  multiplicity  of  suits,  where 
such  plaintiff  would  not  otherwise  have  had  any  recognized 
claim  for  equitable  relief  or  any  legal  cause  of  action?  Or 
is  it  essential  that  a  plaintiff  should  have  some  existing 
cause  of  action,  equitable  or  legal,  some  existing  right  to 
either  equitable  or  legal  relief,  in  order  that  a  court  of 
equity  may  interfere  and  exercise  on  his  behalf  its  juris- 
diction founded  upon  the  prevention  of  a  multiplicity  of 
suits?  The  proper  answer  to  these  questions  is  plainly 
involved  in  any  consistent  theory  of  the  doctrine;  and  yet 
it  will  be  found  that  they  have,  either  expressly  or  impliedly, 
been  answered  in  a  contradictory  manner  by  different 
courts,  and  hence  has  arisen  the  conflict  of  decision  in 
certain  important  applications  of  the  doctrine. 

§  250."  I  will  briefly  examine  these  questions  upon  prin- 
ciple. In  the  first  place,  and  as  a  fundamental  proposition, 
it  is  plain  that  prevention  of  a  multiplicity  of  suits  is  not, 
considered  by  itself  alone,  an  independent  source  or  oc- 
casion of  jurisdiction  in  such  a  sense  that  it  can  create  a 
cause  of  action  where  none  at  all  otherwise  existed.  In 
other  words,  a  court  of  equity  cannot  exercise  its  jurisdic- 
tion for  the  purpose  of  preventing  a  multiplicity  of  suits 
in  cases  where  the  plaintiff  invoking  such  jurisdiction  has 

(a)  This  section  is  cited,  generally,  in  MMulliu's  Adm'r  v.  Sanders,  79 
Va.  356,  364. 


§  250 


EQUITY    JURISPRUDENCE. 


366 


not  any  prior  existing  cause  of  action,  either  equitable  or 
legal ;  lias  not  any  prior  existing  right  to  some  relief,  either 
equitable  or  legal.^  The  very  object  of  preventing  a  multi- 
plicity of  suits  assumes  that  there  are  relations  between  the 
parties  out  of  which  other  litigations  of  some  form  might 
arise.  But  this  prior  existing  cause  of  action,  this  existing 
right  to  some  relief,  of  the  plaintiff  need  not  be  equitable 
in  its  nature.''  Indeed,  in  the  great  majority  of  cases  in 
which  the  jurisdiction  has  been  exercised,  the  plaintiff's 
existing  cause  of  action  and  remedial  right  were  purely 
legal ;  and  it  is  because  the  only  legal  remedy  which  he  could 
obtain  was  clearly  inadequate  to  meet  the  demands  of 
justice,  partly  from  its  own  inherent  imperfect  nature,  and 
partly  from  its  requiring  a  number  of  simultaneous  or 
successive  actions  at  law,  that  a  court  of  equity  is  competent 
to  assume  or  exercise   its  jurisdiction.     It  follows   as   a 


(b)  Quoted,  Storrs  v.  Pensacola  & 
A.  R.  R.  Co.,  29  Fla.  617,  634,  11 
South.  226,  231;  Roland  Park  Co.  v. 
Hull,  92  Aid.  301,  48  Atl.  366;  Tur- 
ner V.  City  of  Mobile,  135  Ala.  73,  33 
South.  133,  141.  Cited  to  this  effect, 
Purdy  V.  Manhattan  EI.  R.  R.  Co.,  13 
N.  Y.  Supp.  295;  Allegany  &  K.  R. 
R.  Co.  V.  Wcidenfeld,  25  N.  Y.  Supp. 
71,  76,  5  Misc.  Rep.  43. 

Thus,  where  an  injunction  was 
sought  against  repeated  trespasses, 
it  was  held  that  "  if  such  trespasses 
separately  be  of  no  real  injury,  even 
an  infinite  repetition  of  the  trespass 
must  be  equally  harmless;"  Purdy 
V.  Manhattan  El.  R.  R.  Co.,  13  N.  Y. 
Supp.  295.  Where  jurisdiction  is  in- 
voked by  the  complainant  to  restrain 
numerous  suits  brought  against  him, 
"  its  exercise  necessarily  assumes  that 
the  complainant  .      .      has  some 

defense,  either  legal  or  equitable,  to 
the  numerous  suits  instituted  or 
threatened  against  him;"  Storrs  v. 
Pensacola  &  A.  R.  R.  Co.,  29  Fla.  617, 
11  South.  220.     "  if  a  party  —  to  give 


an  illustration  —  be  brought  to  tlie 
bar  of  a  law  court  in  forty  separate 
actions  of  ejectment  for  as  many  dis- 
tinct parcels  of  land,  by  the  same 
plaintiff,  upon  identical  facts  in  each 
case,  he  could  not  invoke  the  jurisdic- 
tion of  equity  to  a  prevention  of  a 
multiplicity  of  suits  if  he  were  a 
mere  naked  trespasser  and  wrong- 
doer in  respect  to  the  lands  severally 
sued  for;  had  no  title,  legal  or  equita- 
ble, no  right  to  the  possession,  no  de- 
fense to  any  of  the  actions.  He  can- 
not invoke  equitj'  merely  to  have  his 
wrong-doing  adjudged  in  one  suit  in- 
stead of  forty."  Turner  v.  City  of 
Mobile,  135  Ala.  73,  33  South.  133, 
141.  See  also  Town  of  Mount  Zion 
V.  Gillman,  14  Fed.  123. 

(c)  Quoted,  Storrs  v.  Pensacola  &  A. 
R.  R.  Co.,  29  Fla.  617,  634,  11  South. 
226,  231;  Roland  Park  Co.  v.  Hull,  92 
Md.  301,  48  Atl.  660.  That  a  bill  of 
peace  may  lie  to  resti-ain  equitable 
actions,  see  Allegany  &  K.  R.  R.  Co. 
v.  Weidenfold,  25  N.  Y,  Supp.  71,  6 
Misc.  Rep.  43. 


367  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    250 

necessary  consequence  —  and  this  point  is  one  of  great 
importance  to  an  accurate  conception  of  the  whole  doctrine 
—  that  the  existing  legal  relief  to  which  the  plaintiff  who 
invokes  the  aid  of  equity  is  already  entitled  need  not  he  of 
the  same  kind  as  that  ivhich  he  demands  and  obtains  from  a 
court  of  equity;  on  the  contrary,  it  may  be,  and  often  is,  an 
entirely  different  species  of  remedy."*  One  example  will 
sufficiently  illustrate  this  most  important  conclusion.  The- 
facts  constituting  the  relations  of  the  parties  might  be  such 
that  the  only  existing  right  to  legal  relief  of  the  single  plain- 
tiff against  the  wrong-doer  is  that  of  recovering  amounts 
of  damages  by  successive  actions  at  law;  or  the  only  exist- 
ing right  to  legal  relief  of  each  ono  of  numerous  plaintiffs 
having  some  common  bond  of  union  is  that  of  recovering- 
damages  in  a  separate  action  at  law  against  the  same  wrong- 
doer ;  while  the  equitable  relief  which  might  be  obtained  by 
the  single  plaintiff  in  the  one  case,  or  by  all  the  plaintiffs 
united  in  the  other,  might  include  a  perpetual  injunction,, 
and  the  rescission,  setting  aside,  and  abatement  of  the 
entire  matter  or  transaction  which  caused  the  injury,  or  the 
declaration  and  establishment  of  some  common  right  or 
duty  affecting  all  the  parties.  The  decisions  are  full  of 
examples  illustrating  this  most  important  feature  of  the- 
doctrine.® 

(d)  Indeed,  it  may  be  remarked  tion  suit  against  state  olficials,  may 
that  the  cases  are  comparatively  rare  avoid  interminable  litigation  with 
where  the  jurisdiction  can  be  exer-  members  of  the  community.  See 
cised  for  purely  pecuniary  relief,  or  Smyth  v.  Ames,  169  U.  S.  466,  517,, 
the  recovery  of  specific  property.  See  618,  18  Sup.  Ct.  418;  Haverhill  Gas- 
post,  §  2511/4,  note  (c).  The  remedy  light  Co.  v.  Barker,  109  Fed.  694; 
roost  frequently  obtained  is  injunc-  post,  §  274,  note  (d),  and  references, 
tion;  see  post,  §  261,  note  (b),  where  Conversely,  a  single  plaintiff  may 
the  cases  are  classified  according  to  sometimes  sue  in  behalf  of  a  numer- 
the  remedy  obtained.  ous  class,  although  the  injury  to  such 

(e)  It  is  by  no  means  essential  that  plaintiff  personally  may  be  nominal; 
the  parties  with  whom  the  plaintiff  as  where  a  city  sued  to  enjoin  breach 
seeks  to  avoid  litigation  are  the  same  of  a  contract  made  with  a  gas  com- 
as the  parties  to  the  bill ;  thus,  it  is  pany  on  behalf  of  its  inhabitants.. 
frequently  a  ground  of  jurisdiction  Muncie  Nat.  Gas  Co  v.  City  of  Mun-^ 
that  the  plaintiff,  by  a  single  injunc-  cie,  160  Ind.  97,  66  N.  E.  436,  441. 


g    251  EQUITY   JURISPRUDENCE.  368 

§  251."  The  remaining  questions  to  be  considered  are: 
What  multiplicity  of  suits  is  it  which  a  court  of  equity  will 
prevent?  What  party  must  be  harassed,  or  incommoded, 
or  threatened  with  numerous  litigations,  and  by  whom 
must  such  litigation  be  instituted,  in  order  that  a  court  of 
equity  may  take  jurisdiction  and  prevent  the  inconvenience 
and  wrong  by  deciding  all  the  matters  in  one  decree? 
These  questions  must  chiefly  belong  to  cases  of  the  third 
and  fourth  classes,  as  described  in  a  preceding  paragraph, 
where  the  ''  multiplicity  "  to  be  prevented  arises  from  the 
fact  that  many  persons  claim  or  are  subject  to  some  general 
right,  although  their  individual  interests  are  separate  and 
distinct.  In  cases  belonging  to  the  first  and  second  classes, 
where  the  litigations  are  necessarily  between  a  single  plain- 
tiff and  a  single  defendant,  by  or  against  whom  all  the  ac- 
tions must  be  brought,  there  could  not  generally  be  any  room 
or  opportunity  for  the  questions  above  stated.  It  is  in  the 
virtual  and  implicit,  though  not  often  express  and  avowed, 
answer  to  these  questions  that  most  of  the  conflict  of  judicial 
opinion  occurs.  It  has  been  laid  down  as  a  general  prop- 
osition, that  a  court  of  equity,  in  a  suit  by  one  party  against 
a  class  of  persons,  almost  always  necessarily  indefinite  in 
number,  claimed  to  rest  upon  the  jurisdiction  to  prevent 
a  multiplicity  of  actions,  will  not  by  injunction  declare 
and  establish  on  behalf  of  the  plaintiff  a  right  which  is  in 
its  nature  opposed  to  and  destructive  of  a  public  right 
claimed  and  enjoj^ed  by  the  defendants  in  common  with 
all  other  members  of  the  community  similarly  situated ;  as, 
for  example,  an  exclusive  right  of  the  plaintiff  to  a  public 
highway,  or  to  a  common  navigable  river,  or  to  a  ferry 
across  a  river.  A  reason  given  for  this  conclusion  is,  that 
such  a  decree  would  virtually  require  the  court  to  enjoin 
all  the  inhabitants  of  the  state  or  country.^      The  true 

12  litory's  Eq.  Jur.,  §  858;  citing  Hilton  v.  Lord  Scarborough,  2  Eq. 
Cas.  Abr.  171,  pi.  2;  Mitford's  Eq.  PL,  Jeremy's  ed.,  148.  It  lias  also 
been   decided   that  a  court  will   not   interfere  on  behalf  of  one  or  more   in- 

(a)  This  section  is  cited  in  Mucon  &  C.  R.  R.  Co.  v.  Gibson,  85  Ga.  1,  11 
S.  E.  442,  21  Am.  St.  Rep.  135. 


369  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    251 

reasons,  however,  why  a  court  of  equity  refuses  to  grant 
such  relief  are  wholly  unconnected  with  the  doctrine  of 
preventing  a  multiplicty  of  suits;  they  rest  entirely  upon 
considerations  of  public  policy  which  would  hinder  a  court 
of  equity  from  interfering  with  the  enjoyment  of  rights 
purely  public.  Again,  in  speaking  of  cases  which  would  fall 
either  in  the  third  or  fourth  class,  where  the  total  contro- 
versy is  between  a  single  determinate  party  on  the  one 
side,  and  a  number  of  persons,  more  or  less,  on  the  other, 
the  proposition  has  been  stated  in  the  most  general  terms, 
that  in  order  to  originate  this  jurisdiction  —  namely,  a 
bill  of  peace  by  one  plaintiff  against  numerous  defendants 
—  it  is  essential  that  there  be  a  single  claim  of  right  in  all 
(i.  e.,  of  the  defendants)  arising  out  of  some  privity  or  re- 
lationship with  the  plaintiff.  If  this  be  true,  it  must  clearly 
be  requisite  also  in  the  class  of  suits  brought  by  or  on  be- 
half of  numerous  plaintiffs  against  one  defendant."  The 
proposition  thus  quoted  from  a  text-writer  has  been  ma  in- 
dividuals when  their  injury  is  public  in  its  nature,  and  is  only  suffered  by  each 
one  of  them  in  common  with  all  other  citizens  or  members  of  the  community 
or  municipality,  because  such  individuals  have  no  cause  of  action  what- 
ever which  any  court  of  equity  can  recognize;  their  remedy  is  wholly  legis- 
lative and  governmental.  The  observations  in  the  text  apply  with  equal 
force  to  this  class  of  cases.  See  Doolittle  v.  Supervisors,  18  N.  Y.  15.5; 
Roosevelt  v.  Draper,  23  N.  Y.  318;  Sargent  v.  Ohio  &  Miss.  R.  R.,  1  Handy, 
25,  60;  Carpenter  v.  Mann,  17  Wis.  160;  Kittle  v.  Fremont,  1  Nebr.  329, 
337;  Craft  v.  Commrs,  etc.,  5  Kan.  518. 

2  Adams's  Equity,  200,  6th  Am.  ed.,  408.  After  laying  down  the  above 
general  proposition,  the  author  adds,  by  way  of  illustration :  "A  bill  of  peace, 
therefore,  will  not  lie  against  independent  tresspassers  having  no  com- 
mon claim,  and  no  appearance  of  a  common  claim,  to  distinguish  them 
from  the  rest  of  the  community;  as,  for  example,  against  several  booksellers 
who  have  infringed  a  copyright,  or  against  several  persons  who,  at  dif- 
ferent times,  have  obstructed  a  ferry.  For  if  a  bill  of  peace  could  be 
sustained  in  such  a  case,  the  injunction  would  be  against  all  the  people  of 
the  kingdom";  citing  Dilley  v.  Doig,  2  Ves.  486;  Mitford's  Eq.  PI.  147,  148. 
These  particular  cases  are  undoubtedly  correct  applications  of  the  doctrine; 
but  they  clearly  do  not  sustain  the  broad  proposition  of  this  writer,  that 
the  claim  of  right  between  the  single  party  on  the  one  side,  and  the  class  of 
persons  on  the  other,  must  arise  out  of  &cme  xy^ivity  existing  between  all 
the  members  of  that  class  as  individuals,  and  tue  sii:gle  party  on  the  other 
side,  by  or  against  whom  the  right  is  asserted. 

Vol.  1  —  24 


§    251  EQUITY   JURISPRUDENCE.  370 

tained  by  some  judges;  but  it  seems  to  be  quite  irreconcil- 
able, at  all  events  in  its  broad  generality,  with  numerous 
well-considered  and  even  leading  decisions,  both  English 
and  American,  made  by  courts  of  the  highest  ability,  if  any 
ordinary  and  effective  meaning  is  given  to  the  word 
"  privity."  Suits  have  often  been  sustained  by  a  single 
plaintiff  against  a  numerous  class  of  defendants,  and  by 
or  on  behalf  of  a  numerous  class  of  plaintiffs  against  a 
single  defendant,  avowedly  on  the  ground  of  "  preventing 
a  multiplicity  of  suits,"  where  there  was  no  relation  ex- 
isting between  the  individual  members  of  the  class  and 
their  common  adversary  to  which  the  term  '^  privity  "  was 
at  all  applicable.  Of  course  there  must  be  some  common 
relation,  some  common  interest,  or  some  common  question, 
or  else  the  decree  of  a  court  of  equity,  and  the  relief  given 
by  it  in  the  one  judicial  proceeding,  could  not  by  any  pos- 
sihility  avail  to  prevent  the  multiplicity  of  suits  which  is  the 
very  object  of  its  interference.''  Finally,  it  has  been  stated 
in  a  very  positive  manner  in  some  American  decisions,  as 
an  essential  requisite  to  the  existence  or  exercise  of  the 
jurisdiction  to  prevent  a  multiplicity  of  suits,  that  the  plain- 
tiff who  invokes  the  jurisdiction  of  equity  must  himself  be 
the  party  who  would  be  compelled  to  resort  to  numerous 
actions  in  order  to  obtain  complete  redress,  or  who  would  be 
subjected  to  numerous  actions  by  his  adversary  party,  un- 
less the  court  of  equity  interferes  and  decides  the  whole 
matter,  and  gives  final  relief  by  one  decree.*^  As  I  have  al- 
ready remarked,  this  proposition  may  be  accepted  as 
actually  true  in  cases  belonging  to  the  first  and  to  the 
second  classes,  where  the  controversy  is  always  between 
two  single  and  determinate  parties,  and  the  sole  ground  for 
a  court  of  equity  to  interfere  on  behalf  of  either  is,  that 
numerous  actions  at  law  are  or  must  be  brought  by  one 

(b)  Quoted  in  Hale  v.  Allinson,  102        See    the    new     paragraph     following 
Fed.  790,  791;  Mengel  v.  Lehigh  Coal        (§  2511/2). 

k  Nav.  Co.,  24  Pa.  Co.  Ct.  Hep.  152.  (c)  See  cases  collected,  post,  %  267, 

editor's  note. 


371  TO   PEEVENT   A   MULTIPLICITY   OF   SUITS.  §    251| 

against  the  other.  But  if  the  same  rule  were  extended  as 
an  essential  requisite  to  cases  belonging  to  the  third  and' 
fourth  classes, —  and  it  is  in  such  cases  that  it  has  some- 
times been  applied, —  it  would  at  one  blow  overturn  a  long 
line  of  decisions,  both  English  and  American,  which  have  al- 
ways been  regarded  as  authoritative  and  leading.  On  prin- 
ciple, therefore,  the  rule  last  above  stated  cannot  be 
regarded  as  a  universal  one,  controlling  the  exercise  of  the 
equitable  jurisdiction  ''  to  prevent  a  multiplicity  of  suits.'* 


[§  251^.*  Jurisdiction  not  Exercised  when  That  would  be  In- 
effectual ;  Simplifying  of  the  Issues  Essential. —  It  seems  desir- 
able to  further  emphasize  and  illustrate  the  author's 
statement  that  in  cases  apparently  falling  within  classes 
third  and  fourth,  where  the  jurisdiction  depends  on  the 
multitude  of  plaintiffs  or  defendants,  ''  there  must  be  sume 
common  relation,  some  common  interest,  or  some  common 
question  "  in  order  that  the  one  proceeding  in  equity  may 
really  avail  to  prevent  a  multiplicity  of  suits.  The  equity 
suit  must  result  in  a  simplification  or  consolidation  of  the 
issues;  if,  after  the  numerous  parties  are  joined,  there  still 
remain  separate  issues  to  be  tried  between  each  of  them 
and  the  single  defendant  or  plaintiff,  nothing  has  been 
gained  by  the  court  of  equity's  assuming  jurisdiction.  In 
such  a  case,  '*  while  the  bill  has  only  one  number  upon  the 
docket  and  calls  itself  a  single  proceeding,  it  is  in  realty  a 
bundle  of  separate  suits,  each  of  which  is  no  doubt  similar 
in  character  to  the  others,  but  rests  nevertheless  upon  the 
separate  and  distinct  liability  of  one  defendant  "  *  in  cases 

•  The    following    new    paragraphs,  clearly  recognized  in  §  251  than  else- 

§§  251%  and  251%,  may  well  be  post-  where  in  the  author's  text, 

poned,    in   a   consecutive    reading   of  (a)  Tompkins     v.    Craig,    93    Fed. 

this  chapter,  until  §  265  is  reached.  885,  2  Ames  Cas.  Eq.  Jur.  87,  by  Mc- 

They  are   inserted   in   this  place   be-  Pherson,  D.  J,     The  very  recent  case 

cause  the  principle  of  §  25 1^^  is  more  of  Hale  v.  Allinson,  188  U.  S.  56,  23 


§  25U 


EQUITY   JURISPRUDENCB. 


372 


resembling  those  of  the  fourth  class,  or  upon  the  separate 
and  distinct  claim  of  one  plaintiff,  in  cases  resembling 
those  of  the  third  class.  In  refusing  to  entertain  these 
spurious  "  bills  of  peace,"  courts  of  equity  impose  no  real 
limitation  upon  their  jurisdiction,  which,  by  its  very  defini- 
tion, exists  not  because  of  multiplicity  of  suits,  but  to  avoid 
them,  when  their  rules  of  procedure  can  avail  to  that  pur- 
pose; indeed,  they  merely  apply  to  bills  of  this  character 
the  ordinary  rules  of  equity  pleading  relating  to  multifar- 


iousness. 

Sup.  Ct.  244,  250-254,  affirming  106 
Fed.  258  (C.  C.  A.),  and  102  Fed, 
790,  and  the  opinions  therein  of  Mr. 
Justice  Peckham  and  of  McPherson, 
D.  J.,  present  this  matter  in  the 
clearest  light.  See  post,  note  (f). 
While  fully  recognizing  the  principle 
of  jurisdiction  contended  for  by  the 
author,  Mr.  Justice  Peckham  ob- 
serves :  "  To  say  whether  a  particu- 
lar case  comes  within  the  principle  is 
sometimes  a  much  more  difficult  task. 
Each  case,  if  not  brought  directly 
•within  the  principle  of  some  preced- 
ing case,  must,  as  we  think,  be  decided 
upon  its  own  merits  and  upon  a  sur- 
vey of  the  real  and  substantial  con- 
venience of  all  parties,  the  adequacy 
of  the  legal  remedy,  the  situations  of 
the  dififerent  parties,  the  points  to 
be  contested,  and  the  result  which 
would  follow  if  jurisdiction  should 
be  assumed  or  denied;  these  various 
matters  being  factors  to  be  taken 
into  consideration  upon  the  question 
of  equitable  jurisdiction  on  this 
ground,  and  whether  within  reason- 
able and  fair  groiimls  the  suit  is  cal- 
culated to  be  in  truth  one  which  will 
practically  prevent  a  multiplicity  of 
litigation,  and  will  be  an  actual  con- 
venience to  all  parties,  and  will  not 
unreasonably  overlook  or  obstruct  the 
material  interests  of  any.  The  single 
fact  that  a  multiplicity  of  suits  may 
be   prevented   by   this   assumption   of 


jurisdiction  is  not  in  all  cases  enough 
to  sustain  it.  It  might  be  that  the 
exercise  of  equitable  jurisdiction  on 
this  ground,  while  preventing  a  for- 
mal multiplicity  of  suits,  would 
nevertheless  be  attended  with  more 
and  deeper  inconvenience  to  the  de- 
fendants than  would  be  compensated 
for  by  the  convenience  of  a  single 
plaintill;  and  where  the  case  is  not 
covered  by  any  controlling  precedent 
the  inconvenience  might  constitute 
good  ground  for  denying  jurisdiction. 
.  Is  there,  upon  the  complain- 
ant's theory  of  this  case,  any  such 
common  interest  among  these  defend- 
ants as  to  the  questions  of  fact  that 
may  be  put  in  issue  between  them  and 
the  plaintiff?  Each  defendant's  de- 
fense may,  and  in  all  probability  will, 
depend  upon  totally  different  facts, 
upon  distinct  and  particular  con- 
tracts, made  at  different  times,  and 
in  establishing  a  defense,  even  of  like 
character,  different  witnesses  would 
probably  be  required  for  each  defend- 
ant, and  no  defendant  has  any  inter- 
est with  another." 

(b)  Lehigh  Valley  R.  R.  Co.  v.  Mc- 
Farlan,  31  N.  J.  Eq.  730,  759,  1 
Keener's  Cas.  Eq.  Jur.  133.  "  In  this 
respect  there  is  no  difference  between 
such  bills  [i.  e.,  those  in  'causes  of 
purely  equitable  cognizance ']  and 
bills  of  peace.  A  bill  of  peace  which 
ghall    draw    within    equitable    cogni- 


373 


TO   PREVENT    A    MXTLTIPLICITT    OF    SUITS.  §    251| 


The  following  cases  may  serve  to  illustrate  under  what 
circumstances  the  court  will  decline  to  exercise  its  jurisdic- 
tion because  it  would  prove  ineffective  to  avoid  a  multiplic- 
ity of  suits,  (1)  Cases  where  the  plaintiffs  were  numer- 
ous and  sought  to  join.  The  plaintiffs,  twelve  in  number^ 
had  by  one  contract  assigned  to  the  defendants  their  inter- 
ests in  an  option  for  the  purchase  of  a  mine,  in  consideration 
of  the  defendants'  promise  to  refund  to  each  the  amount 
previously  advanced  by  him  for  the  purpose  of  developing 
the  mine.  The  plaintiffs  joined  in  one  suit  to  recover  these 
separate  amounts.  Obviously,  the  case  was  not  one  of  equi- 
table cognizance,  since  the  issues  between  each  plaintiff  and 
the  defendants  were,  though  similar,  entirely  distinct  and,. 
save  as  they  grew  out  of  the  same  transaction,  unconnected.^" 


zance  causes  of  action  which  are 
purely  legal  in  their  character,  must 
conform  to  the  rules  and  principles 
of  ordinary  equity  pleading.  . 
In  such  cases  there  must  be  such  a 
unity  of  interest  on  the  one  side  or 
the  other,  as  would  justify  a  joinder 
of  the  parties  in  causes  of  purely 
equitable  cognizance." 

The  very  common  misconception 
of  the  objects  that  may  be  attained 
by  a  "  bill  of  peace,"  to  the  correc- 
tion of  which  the  present  §  251% 
is  addressed,  appears  to  be  nearly 
as  ancient  as  the  jurisdiction  itself; 
as  witness  the  amusing  instance 
recorded  in  2  Ames  Cas.  Eq.  Jur., 
p.  88,  note.  "  In  a  note  to  Best 
V.  Drake,  11  Hare,  371,  the  reporter 
reproduces  the  following  extraordi- 
nary bill  of  peace,  in  the  time  of  Lord 
Nottingham,  given  in  the  Diary  of 
Narcissus  Luttrell:  'A  bill  in  Chan- 
cery was  this  term  preferred  by  a 
widow  against  500  persons,  to  answear 
what  moneys  they  ow'd  her  husband; 
the  bill  was  above  3000  sheets  of 
paper,  to  the  wonder  of  most  people; 
but  the  Lord  Chancellor  looking  on 
it  as  vexatious,  for  it  woiild  cost  each 


Defendant  a  lOOl.  the  copyeing  out, 
he  dismissed  the  bill,  and  ordered 
Mr.  Newman,  the  councellour,  whose- 
hand  was  to  it,  to  pay  the  Defendants 
the  charges  they  have  been  att.' " 

(c)  Van  Auken  v.  Dammeier,  27 
Oreg.  150,  40  Pac.  89.  Bean,  C.  J.^ 
recognizing  the  principles  laid  down. 
in  the  present  chapter,  says,  in  part: 
"  The  rights  of  the  plaintiffs,  as 
against  the  defendants,  are  purely 
legal,  and  wholly  separate  and  dis- 
tinct. There  is  no  community  of  in- 
terest among  them  either  in  the  sub- 
ject-matter of  the  suit,  or  in  the 
relief  sought.  .  .  .  Wliere  the 
rights  of  the  several  plaintiffs  are 
purely  legal,  and  in  themselves  per- 
fectly distinct,  so  that  each  party's 
case  depends  upon  its  own  peculiar 
circumstances,  and  the  relief  de- 
manded is  a  separate  money  judg- 
ment in  favor  of  each  plaintiff  and 
against  the  defendant,  there  is  nO' 
'  practical  necessity  '  for  the  interpo- 
sition of  a  court  of  equity,  and  we  can< 
find  no  authority  for  holding  that  it: 
will  assume  jurisdiction  simply  be- 
cause the  parties  are  numerous."  In- 
deed, cases  of  classes  third  and  fourtb 


I  2511 


EQUITY   JURISPRUDENCB. 


374 


■Several  complainants,  owners  of  property  of  the  same 
■character,  which  they  asserted  to  be  not  subject  to  assess- 
ment for  taxes,  joined  in  a  suit  to  enjoin  the  collection  of 
taxes  levied  thereon,  claiming  as  the  ground  of  jurisdiction 
the  avoidance  of  a  multiplicity  of  suits.  There  was  no 
complaint  that  the  tax  as  a  whole  was  not  legal,  and  the  com- 
plainants did  not  sue  as  representatives  of  all  the  property- 
owners  of  the  community.*^  ''A,  upon  being  sued  in  eject- 
ment for  a  parcel  of  land  to  which  he  claims  to  have  the 
legal  title,  or  which  he  claims  the  legal  right  to  hold  against 
the  plaintiff,"  cannot  "  maintain  a  bill  to  enjoin  the  action 
at  law,  and  have  his  legal  title  or  defense  adjudged  and  his 
possession  conserved  thereunder,  solely  upon  the  ground  that 
B,  C,  D,  E,  and  F,  are  also  being  sued  by  the  same  plain- 
tiff for  other  and  distinct  parcels  of  land  which  the  plain- 
tiff claims  under  the  same  chain  of  title  that  he  relies  on 
against  A."^ 


where  the  jurisdiction  can  be  success- 
fully invoked  for  purely  pecuniary 
Telief,  while  not  unknown  (see  post, 
i  2G1,  note  (b),  "Class  Third,"  (I) 
(f)  ;  "Class  Fourth,"  (I)  (h)),  are 
Tiecessarily  rare.  It  has  even  been 
dield  that  plaintiffs  who  may  join 
to  restrain  a  nuisance  common  to 
them  all  cannot  in  the  same  suit 
recover  damages  for  their  respec- 
tive injuries.  Barham  v.  Hostetter, 
67  Cal.  272,  7  Pac.  689;  Fore- 
man V.  Boyle,  88  Cal.  290,  26  Pac. 
94;  Geurkink  v.  Petaluma,  112  Cal. 
306,  44  Pac.  570;  Younkin  v.  Mil- 
waukee Co.,  112  Wis.  15,  87  N.  W. 
801.  {Query,  why  is  this  not  an  in- 
stance for  the  application  of  the 
familiar  principle  that  in  case  of  in- 
junction against  a  private  nuisance 
the  cause  may  be  retained  for  the 
purpose  of  awarding  damages?  See 
«n<e,  §  237.  The  rule  against  multi- 
'fariou.sness  surely  does  not  require 
'that  all  tlic  parties  should  be  inter- 
•c'IpI   in  nil  the  matters  set  forth  in 


the  bill.  In  State  v.  Sunapee  Dam 
Co.  (N.  H.),  55  Atl.  899,  a  case  of 
this  character,  the  court  was  evenly 
divided  on  the  question  of  jurisdic- 
tion to  award  damages  to  the  numer- 
ous plaintiffs  in  lieu  of  injunction, 
but  the  jurisdiction  to  award  them  in 
addition  to  equitable  relief  appears 
to  have  been  unquestioned ) . 

(d)  Schulenberg-Boeckeler  Lumber 
Co.  V.  Town  of  Hayward,  20  Fed.  422, 
424.  "  Each  complainant  must  make 
his  own  case  upon  the  facts.  One 
might  succeed  and  another  fail.  I 
know  of  no  case,  and  have  been  re- 
ferred to  none,  in  which  persons  so 
severally  interested  have  been  per- 
mitted to  join  in  either  a  legal  or 
equitable  suit,  and  to  allow  it  would 
be  to  confound  the  established  order 
of  judicial  proceeding,  and  lead  to 
interminable  confusion  and  embar- 
rassment." 

(e)  Turner  v.  City  of  Mobile,  135 
Ala,  73,  33  South.  133,  141-143.  Mc- 
Clellan,  C.  J.,  carefully  analyzes  the 


375 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


25U 


(2)  Cases  ivhere  the  plaintiff  sought  to  join  numerous 
defendants.  A  bill  was  filed  to  collect  tlie  amounts  pre- 
viously assessed  against  the  stockholders  of  a  corporation 
under  a  statute  maJving  them  severally  and  individually 


author's  definition  of  the  "third 
class "  in  §  245,  and  his  groups  of 
cases  illustrating  that  class  in  §  273, 
and  shows  that  the  case  in  hand  falls 
neither  within  any  of  these  groups 
nor  within  the  principle  underlying 
them.  "  The  community  idea,  so  to 
speak,  in  each  of  them,  lies  in  two 
facts,  which  are  absent  in  the  case 
before  us.  In  the  first  place,  the 
wrong  done  to  the  '  numerous  per- 
sons '  of  the  text  is  one  and  the 
flame  wrong  against  them  all,  affect- 
ing each  precisely  alike.  Here,  as- 
suming that  the  institution  of  an  ac- 
tion of  ejectment  to  which  a  defense 
is  developed  is  a  wrong,  and  that  it 
is  a  wrong  to  bring  thirty  or  more 
6uch  actions,  there  can  be  no  pretense 
that  the  institution  of  thirty  or  more 
separate  suits  against  thirty  or  more 
separate  parties  for  thirty  or  more 
distinct  lots  of  land  is  one  wrong,  or 
that  the  institution  of  the  one  suit 
sought  here  to  be  enjoined  was  a 
wrong  against  and  common  to  each 
and  all  the  defendants,  in  the  twenty- 
nine  or  more  separate  and  distinct 
actions.  In  the  next  place,  in  each 
of  the  cases  put  in  the  last  four 
clauses  of  the  section  [§  273,  post] 
a  decree  in  favor  of  one  or  more 
of  the  parties  against  all  [of]  whom 
the  one  wrong  was  committed  and  all 
[of]  whom  it  injures  in  the  same  way 
would  necessarily  and  directly  inure 
to  the  benefit  of  all  said  persons. 
Thus,  a  decree  at  the  suit  of  A  can- 
celing a  conveyance  as  a  fraud  on 
creditors  as  effectually  removes  and 
destroys  the  conveyance  as  an  impedi- 
ment in  the  way  of  creditors  B,  C, 
and  D  as  if  they  had  been  parties 
complainant    with    A    in    the    bill. 


Of  course,  in  such  cases  all 
may  join  in  a  bill,  or  one  may  exhibit 
it  on  behalf  of  himself  and  the  others 
or  on  his  own  behalf  alone,  for  that 
in  either  case  the  result  to  them  all 
is  the  same  —  relief  to  all  of  them 
from  the  consequences  of  the  wrong 
that  was  done  to  all  of  them.  But  not 
so  in  the  case  here.  To  enjoin  the  city 
of  Mobile  to  prosecute  its  action 
against  A  would  not  be  to  enjoin  it  to 
prosecute  its  other  and  distinct  sev- 
eral actions  against  twenty-nine  or 
more  other  persons  who  are  not  par- 
ties  to  this  suit,  and  might  never  be, 
even  if  the  suit  is  allowed  to  con- 
tinue, and  in  whose  favor  no  relief 
whatever  has  been  or  could  be  prayed 
by  A.  .  .  .A  decree  for  these  com- 
plainants would  not  bind  either  the 
plaintiff  or  the  defendant  in  any  of 
the  other  suits.  It  would  not  put  an 
end  to  any  one  of  them,  nor  prevent 
the  city  of  ^Mobile  instituting  any  num- 
ber of  other  like  suits,  and  having  a 
separate  trial  in  each.  The  decree,  in 
short,  would  not  prevent  the  multi- 
plicity of  suits  alleged  to  be  pending 
or  imminent."  MeClcllan,  C.  J.,  dis- 
tinguished the  often  cited  decision  of 
Mr.  Justice  Harlan,  in  Osborne  v. 
Railroad  Co.,  43  Fed.  824  (for  which 
see  post,  at  beginning  of  editor's  note 
to  §  2G1),  a  very  similar  case,  on 
the  grounds  that  there  "  all  the  eject- 
ment defendants  in  whose  behalf  re- 
lief was  sought  were  actual  complain- 
ants in  the  bill,"  and  "the  legal  titlf 
of  each  of  the  complainants  had,  ii 
effect,  been  adjudged  and  settled  at 
law."  (The  latter  statement,  how- 
ever, appears  to  have  been  true  of 
only  a  portion  of  the  complainants  in 
the  Osborne  case.)      The  decision  of 


§  251i 


EQUITY   JUKISPRUDENCB. 


376: 


liable  for  its  debts  to  an  amount  equal  to  the  value  of  their 
respective  shares.  While  an  inquiry  to  determine  how  large 
the  assessment  should  be  should  properly  be  made  in  equity, 
*'  after  the  rate  of  assessment  has  been  fixed,  and  the  in- 


this  able  court  is  plainly  correct, 
and  not  at  variance  with  any  propo- 
tion  advanced  by  the  author.  When 
the  jurisdiction  is  invoked  because 
of  separate  wrongs,  each  involving  the 
same  question  of  law  and  fact,  it  is 
plain  that  the  individuals  severally 
affected  must  usually  be  made  par- 
ties to  the  bill,  in  order  that  the  re- 
lief awarded  may  be  effectual  to  pre- 
vent a  multiplicity  of  suits.  The 
court  appears  to  have  gone  too  far, 
however,  if  it  attempts  to  assert,  as 
a  test  of  the  jurisdiction  in  "  class 
third,"  the  existence  of  a  single 
wrong,  having  a  common  effect  upon 
the  numerous  persons,  and  capable 
of  being  remedied,  as  to  its  effect 
upon  them  all,  by  the  suit  of  a  sin- 
gle plaintiff  in  his  own  behalf  alone. 
While  in  cases  where  the  wrongs  are 
separate,  though  similar,  there  is 
great  danger  that  the  joint  suit  of 
the  persons  severally  injured  may 
fall  within  the  condemnation  of  the 
principle  explained  in  this  section, 
viz.,  that  the  issues  as  to  each  plain- 
tiff will  remain  as  separate  in  the 
single  equity  suit  as  in  the  numerous 
legal  actions  —  yet  the  instances  are 
numerous  where  such  suits  have  been 
successful;  see  post,  §  261,  first  part 
of  editor's  note,  for  illustrations;  also 
§  209,  and  note  1. 

In  Sullivan  Timber  Co.  v.  City  of 
Mobile,  110  Fed.  18G,  which  was  ap- 
parently a  part  of  the  same  litiga- 
tion, the  court  likewise  refused  to 
suntain  jurisdiction  because  it  did 
not  appear  that  the  issues  between 
the  defendant  and  each  of  the  plain- 
tiffs depended  upon  the  same  ques- 
tions of  law  or  fact. 

See      also      the      following     cases, 


where  each  of  the  complainants 
might  have  been  entitled  to  equitable 
relief,  but  their  joinder  was  held  im- 
proper. Purchasers  of  distinct  par- 
cels of  land,  by  separate  contracts, 
made  at  different  times,  cannot  join 
in  a  suit  against  their  common 
vendor  to  compel  conveyance  (Wins- 
low  V.  Jenness,  64  Mich.  84,  30  N.  W. 
905)  or  reformation  (Hendrickson  v. 
Wallace,  31  N.  J.  Eq.  604).  Neither 
plaintiff  has  the  slightest  interest  in, 
or  connection  with,  the  contract  of 
the  other.  "  The  only  respect  in 
which  it  can  be  said  that  they  have 
the  same  interest  is,  that  their  po- 
sitions are  similar.  They  each  hap- 
pen to  have  a  right  of  action  against 
the  same  person,  for  causes  almost 
identical  in  their  facts."  In  Dem- 
arest  v.  Hardman,  34  N.  J.  Eq.  472„ 
it  was  held  that  several  persons  own- 
ing distinct  parcels  of  land,  or  oc- 
cupying different  dwellings,  and  hav- 
ing no  common  interest,  cannot  join 
in  an  action  to  restrain  a  nuisance 
caused  by  the  vibration  of  macliinery 
in  defendant's  building,  in  conse- 
quence of  the  special  injury  to  the 
particular  property  of  each.  The  case 
seems  a  somewhat  extreme  applica- 
tion of  the  rule.  For  an  admirable 
illustration,  see  Marselis  v.  Morris 
Canal  Co.,  1  N.  J.  Eq.  31,  post,  note 
to  §  264,  and  the  author's  explana- 
tions and  comments  (distinct  but 
similar  trespasses  by  the  same  de- 
fendant). 

The  question  may  also  arise, 
whether  a  single  plaintiff  suing  in 
behalf  of  a  class  so  represents  the 
class  that  he  may  pray  for  relief  in 
behalf  of  all  persons  that  constitute 
it.     Thus,    in   a   case   where   an   im- 


377 


TO   PKEVENT   A   MULTIPLICITY   OF   SUITS.  §    251^ 


dividual  liability  of  each  stockholder  has  thus  been  ascer- 
tained, the  enforcement  of  such  liability  is  the  proper  sub- 
ject of  a  suit  at  law,  in  which  the  separate  rights  of  the 
defendant  stockholders  are  distinctively  to  be  considered.'* ' 


porter  of  liquors  sued  to  enjoin  their 
seizure  by  state  oflTicials  under  color 
of  an  unconstitutional  statute,  it  was 
held  that  he  could  not  obtain  relief 
in  behalf  of  all  other  citizens  of  the 
state  who  were  importers  of  liquors. 
"  It  is,  indeed,  possible  that  there 
may  be  others  in  like  case  with  the 
plaintiff,  and  that  such  persons  may 
be  numerous,  but  such  a  state  of 
facts  is  too  conjectural  to  furnish  a 
safe  basis  upon  which  a  court  of 
equity  ought  to  grant  an  injunction." 
Scott  V.  Donald,  165  U.  S.  107,  17 
Sup.  Ct.  262.  Compare  §  256,  note 
(c),  post. 

(f)  Tompkins  v.  Craig,  93  Fed. 
885,  2  Ames  Cas.  Eq.  Jur.  87,  by  Mc- 
Pherson,  D.  J.  "The  liability  is 
legal,  and  not  equitable.  It  is  based 
upon  the  stockholder's  contract  of 
subscription,  an  implied  term  of  that 
contract  being  the  declaration  of  the 
statute  that  a  certain  contingent  lia- 
bility should  follow  the  subscription. 
Each  contract  is  a  separate  obliga- 
tion, and  should  be  separately  en- 
forced. It  is  plain,  also,  that  each 
defendant  may  desire  to  set  up  a 
different  defense.  One  stockholder 
may  have  paid  his  assessment  in 
whole  or  in  part;  another  may  seek 
to  raise  the  question  whether  the 
Iowa  court  had  jurisdiction  to  make 
the  levy ;  a  third  may  wish  to  attack 
the  amoimt  of  the  assessment;  an- 
other may  aver  that  his  subscription 
was  void  from  the  beginning;  and 
still  other  defenses,  which  need  not 
be  specified,  are  readily  conceivable. 
We  say  nothing  about  the  validity 
of  these  defenses.  Some  of  them  may 
not  be  available,  and  others  may  not 
be  successful,  but  each  defendant  has 


the  right  to  make  whatever  objec- 
tion he  may  see  fit  to  raise,  in  order 
that  it  may  be  passed  upon  by  the 
court.  If  the  defendants  are  numer- 
ous, as  they  are  in  the  pending  suit, 
it  would  be  almost,  perhaps  wholly, 
impossible  to  apportion  fairly  the 
costs  of  hearing  and  of  determining 
many  unrelated  issues."  See  also 
the  opinion  of  the  same  judge  in  the 
similar  case  of  Hale  v.  Allinson,  102 
Fed.  790;  affirmed  and  opinion 
adopted,  106  Fed.  258  (C.  C.  A.). 
Quoting  the  text,  §§  251,  269,  and 
274,  he  says  in  part:  "The  re- 
ceiver's cause  of  action  against  each 
defendant  is,  no  doubt,  similar  to  his 
cause  of  action  against  every  other, 
but  this  is  only  part  of  the  matter. 
The  real  issue,  the  actual  dispute, 
can  only  be  known  after  each  defend- 
ant has  set  up  his  defense,  and  de- 
fenses may  vary  so  widely  that  no 
two  controversies  may  be  exactly  or 
even  nearly  alike.  If,  as  is  sure  to 
happen,  differing  defenses  are  put  in 
by  different  defendants,  the  bill  evi- 
dently becomes  a  single  proceeding 
only  in  name.  In  reality  it  is  a  con- 
geries of  suits  with  little  relation  tO' 
each  other,  except  that  there  is  a 
common  plaintiff,  who  has  similar 
claims  against  many  persons."  The 
decision  in  Hale  v.  Allinson  was  af- 
firmed by  the  Supreme  Court  (Hale 
v.  Allinson,  188  U.  S.  56,  23  Sup.  Ct. 
244),  and  the  language  of  McPher- 
son,  D.  J.,  adopted  by  the  court  as 
expressing  its  o\\'n  views.  For  a 
portion  of  the  opinion  of  Peckham, 
J.,  see  ante,  note  (a).  See,  further, 
Adams  v.  Coon,  109  U.  S.  380,  a 
Sup.  Ct.  263;  O'Brien  v.  Fitzgerald, 
143  N.  Y.  377,  38  N.  E.  371;  Marsh 


§    251i  EQUITY   JURISPRUDENCE.  378 

A  bill  was  brought  to  cancel  numerous  notes  held  by  several 
defendants,  all  purporting  to  have  been  made  by  the  com- 
plainant, and  claimed  by  him  to  be  forgeries.  The  court, 
while  recognizing  the  jurisdiction  in  cases  of  the  '*  fourth 
class,"  says:  "It  is  not  enough  that  the  grounds  of  the 
invalidity  of  the  several  instruments  are,  as  in  this  case, 
similar.  So  far  as  the  instruments  sought  to  be  cancelled 
here,  as  forged,  are  concerned,  the  forgeries  are  several. 
The  ground  of  the  invalidity  of  these  notes  is  not  a  common 
one  within  the  sense  of  the  cases  cited.  The  character  of 
one  of  these  notes,  as  to  its  being  forged,  has  no  bearing 
as  to  the  others.  The  questions  touching  the  validity  of 
these  notes  are  as  several  as  the  holdings.  There  is,  in 
other  words,  a  multiplicity  of  issues  of  facts  to  be  tried, 
which  the  jurisdiction  invoked  cannot  avoid  or  lessen."* 
A  party  owning  and  maintaining  a  dam  across  a  river,  under 
a  claim  of  right  so  to  do,  cannot  maintain  an  action  in  the 
nature  of  a  bill  of  peace  against  two  groups  of  parties,  who 
have  brought  separate  actions  against  him  to  recover  dam- 
ages for  alleged  torts  claimed  to  have  been  done  to  them  by 
reason  of  the  dam;  one  group  claiming  to  be  injured  by 
back-water  resulting  from  the  maintenance  of  the  dam  at 
an  unlawful  height ;  the  other  claiming  to  be  injured  by  the 
diversion  of  the  water.  **  The  causes  from  which  the  in- 
juries to  the  parties  respectively  resulted,  instead  of  being 
coincident,  are  divergent. '  "*    Persons  whose  alleged  inter- 

V.    Kaye,    168   N.   Y.    196,    61    N.   E.  common   question;    but   in   this   case 

177,  2  Ames  Cas.  Eq.  Jur.  89.     Com-  equity    already    had    jurisdiction    to 

pare    Bailey   v.   Tillinghast,    99    Fed.  compel  payment  of  unpaid  subscrip- 

801,  800,  807    (C.  C.  A.),  post,  note  tions,  and  properly  retained  jurisdic- 

to    §    281,    Fourth    Class,    (I),    (h),  tion  for  complete  relief  againat  each 

where  a  common  question  existed  be-  defendant. 

tween  the  receiver  and  each  share-  (g)  Scott  v.  McFarland,  70  Fed. 
holder.  In  New  York  Life  Ins.  Co.  v.  280,  by  PK>l!inper,  D.  J. 
Beard,  80  Fed.  66,  the  statutory  lia-  (h)  Lehigh  Valley  R.  R.  Co.  v.  Mo- 
bility of  numerous  stockholders  was  Farlan,  30  N.  J.  Eq.  135,  2  Ames  Cas. 
enforced  in  a  single  suit,  although  Kq.  Jur.  85,  31  N.  J.  Fq.  730,  754,  759- 
tli'T(!  appears  to  have  been  no  such  761,  1  Keener  Cas.  Eq.  Jur.  133,  citing 


379 


TO    PREVENT    A   MULTIPLICITY    OF    SUITS.  §    251^ 


ests  in  lands  advertised  for  sale  by  an  administrator  are 
antagonistic,  and  who  file  separate  and  independent  claims 
thereto,  cannot  be  properly  joined  as  co-defendants  to  an 
equitable  petition  brought  by  the  administrator,  praying 
that  the  prosecution  of  the  claims  be  enjoined,  and  that 
the  conflicting  claims  of  title  be  adjudicated  and  settled 
hy  the  judgment  to  be  rendered  upon  such  petition.*  A  bill 
alleged  that  the  complainant's  agent,  without  authority, 
made  sales  of  complainant's  crops,  and  used  their  proceeds, 
and  that  he  wrongfully  appropriated  to  his  use  moneys  sup- 
plied to  him  as  such  agent,  and  joined  with  the  agent  as 
defendants  the  persons  to  whom  he  had  so  disposed  of  the 


and  commenting  on  SheflBeld  Water 
Works  V.  Yeomans,  L.  R.  2  Ch.  App. 
8;  New  York  &  N.  H.  R.  R.  Co.  v. 
Schuyler,  17  N.  Y.  592;  Fellows  v. 
Fellows,  4  Cow.  682,  15  Am.  Dec. 
412 ;  Bouverie  v.  Prentice,  1  Bro.  C. 
C.  200;  Dilly  v.  Doig,  2  Ves,  486; 
Rayner  v.  Julian,  2  Dick.  677 ; 
Whaley  v.  Dawson,  2  Schoales  &  L. 
367,  and  many  other  cases.  See  quo- 
tation from  the  opinion  of  Dcpue,  J., 
ante,  note  (b).  "To  justify  a  bill  of 
peace,  therefore,  there  must  be  in 
dispute  a  general  right  in  the  com- 
plainant, in  which  the  defendants  are 
interested,  of  such  a  character  that 
its  existence  may  be  finally  deter- 
mined in  a  single  issue.  It  is  not 
indispensable  that  the  defendants 
should  have  a  co-extensive  common  in- 
terest in  the  right  in  dispute,  or 
that  each  should  have  acquired  his 
interest  in  the  same  manner,  or  at 
the  same  time,  but  there  must  be  a 
general  right  in  the  complainant,  in 
which  the  defendants  have  a  common 
interest,  which  may  be  established 
against  all  who  controvert  it,  by  a 
single  issue." 

(i)  Webb  V.  Parks,  110  Ga.  639,  36 
S.  E.  70.  Lumpkin,  P.  J.,  after  dis- 
'tinguishing  the  case  of  Smith  v.  Dob- 


bins, 87  Ga.  303,  13  S.  E.  496,  which 
well  illustrates  the  author's  "  fourth 
class,"  continues,  in  the  picturesque 
language  characteristic  of  his  court: 
"  When,  however,  a  number  of  per- 
sons are  at  variance  among  them- 
selves as  to  their  alleged  rights  with 
respect  to  particular  property,  each 
claiming  antagonistically  to  all  the 
others,  and  there  is  no  '  community 
of  interest  among  them  in  the  ques- 
tions of  law  and  fact  involved  in  the 
general  controversy,  or  in  the  kind 
and  form  of  relief  which  they,  re- 
spectively, and  each  for  himself,  de- 
mand,' equity  will  not  compel  them 
to  consolidate  and  engage  in  a  pell- 
mell  struggle.  In  other  words,  if  we 
may  borrow  a  warlike  illustration,  it 
would  not  be  just  or  fair  to  constrain 
soldiers  at  enmity  with  each  other 
to  fight  side  by  side  against  a  common 
foe,  nor  to  allovv-  the  latter  the  ad- 
vantage of  having  the  attention  of 
the  adversaries  diverted  from  attacks 
they  might  successfully  make  upon 
him  by  pressing  distractions  and 
causes  of  quarrel  among  themselves." 
See  also,  to  the  same  effect,  Port- 
wood  V.  Huntress,  113  Ga.  815,  39 
S.  E.  299. 


§  251f 


EQUITY    JURISPRUDENCE. 


380 


property,  alleging  its  conversion  by  them,  and  that  to  sue 
them  all  would  require  a  great  multiplicity  of  suits.  The 
matters  relied  on  for  relief  against  these  defendants,  there- 
fore, depended  on  unconnected  tortious  acts.^ 

§  251f.  There  Must  be  a  Practical  Necessity  for  the  Exer- 
cise of  the  Jurisdiction. —  Since  the  existence  or  exercise  of 
the  jurisdiction,  in  classes  third  and  fourth,  depends  on  de- 
fects in  the  legal  rules  as  to  joinder  of  parties,  where  the 
legal  remedy  is  not  thus  defective,  but  permits  the  joinder 
of  the  numerous  parties  or  consolidation  of  the  numerous- 
suits,  equity  will  not  take  jurisdiction  for  the  purpose  of 
awarding  substantially  the  same  relief  that  may  be  obtained 
at  law.*  Again,  it  has  been  held  that,  if  danger  of  vexatious 
suits  by  the  same,  party  or  numerous  parties  is  the  ground 


(j)  Jones  V.  Hardy,  127  Ala.  221, 
28  South.  564,  2  Ames  Cas.  Eq. 
Jur.  91.  "  To  settle  several  contro- 
versies in  a  single  suit,  and  thereby 
prevent  a  multiplication  of  suits, 
equity  will  assume  jurisdiction  under 
a  variety  of  circumstances,  but  it 
will  never  interfere  to  forestall  legal 
remedies  when  the  causes  of  suit  are 
entirely  separate  and  distinct  from 
each  other  and  depend  for  their  ad- 
justment on  no  common  or  connected 
right,  relation,  or  necessity.  When 
the  jurisdiction  is  invoked  by  a  sin- 
gle complainant  against  several  to 
whom  his  interest  is  separately  op- 
posed, he  must  show  that  the  inter- 
ests of  the  defendants  are  related  to 
each  other  as  being  connected  with, 
or  convergent  in,  the  property  right 
or  question  involved  in  the  suit. 
Pom.  Eq.  Jur.,  §  274." 

For  further  illustrations,  see  Scott  v. 
Erie  R.  R.  Co.,  34  N.  J.  Eq.  354;  Buf- 
falo Chemical  Works  v.  Bank  of  Com- 
merce, 79  Hun,  93,  29  N.  Y.  Supp. 
603;  National  Union  Bank  v.  Lon- 
don &  R.  P.  Bank,  37  N.  Y.  Supp. 
741,    2    App.    Div.    208;     Kirwan    v. 


Murphy,  189  U.  S.  35,  23  Sup.  Ct. 
599 ;  Ducktown  Sulphur,  Copper  & 
Iron  Co.  V.  Fain,  109  Tenn.  56,  70' 
S.  W.  813. 

(a)  As  where  adequate  relief  may- 
be obtained  by  joining  the  numerous 
defendants  or  plaintiffs  in  an  action- 
of  ejectment :  Smythe  v.  New  Or- 
leans C.  &  B.  Co.,  34  Fed.  825 ;  North- 
ern Pac.  R.  R.  Co.  V.  Amacker,  46  Fed. 
233,  49  Fed.  529,  1  C.  C.  A.  345,  7 
U.  S.  App.  33 ;  McGuire  v.  Pensacola 
City  Co.,  105  Fed.  677,  44  C.  C.  A. 
070;  City  of  San  Francisco  v.  Beide- 
man,  17  Cal.  401;  Burroughs  v.  Cut- 
ter, 98  Me.  178,  56  Atl.  649.  See 
also  Manchester  Fire  Assur.  Co.  v. 
Stockton  C.  H.  &  A.  Works,  38  Fed. 
378;  Myers  v.  Sierra  Val.  S.  &  A. 
Assn.,  122  Cal.  669,  55  Pac.  689  (by 
statute,  all  stockholders  may  be 
joined  in  suit  at  law  to  enforce  their 
individual  liability)  ;  Imperial  Fire 
Ins.  Co.  V.  Gunning,  81  111.  230  (in- 
junction sought  against  numerous 
garnishments;  complainant  has  ade- 
quate remedy  by  consolidating  the 
garnishment  suits). 


381 


TO   PEEVENT   A   MULTIPLICITY    OF    SUITS. 


§  252 


of  jurisdiction  alleged  by  the  single  complainant,  he  must 
show  more  than  a  mere  possibility  of  such  litigation;  the 
danger  to  which  he  is  exposed  must  be  a  real  one.*"] 


§  252.  Examination  of  the  Doctrine  upon  Authority  — 
First  Class.^ —  I  shall  now  examine  the  nature,  extent,  and 
limitations  of  the  general  doctrine  upon  authority.  The 
cases  belonging  to  the  first  class  of  the  arrangement  made 


(b)  See  Town  of  Venice  v.  Wood- 
ruff, G2  N.  Y.  462,  20  Am.  Rep. 
495,  as  explained  in  Town  of  Spring- 
port  V.  Teutonia  Sav.  Bank,  75 
N.  Y.  397,  401  (the  numerous  in- 
struments sought  to  be  canceled  did 
not  create  even  a  prima  facie  lia- 
bility) ;  Farmington  Village  Corpo- 
ration V.  Sandy  R.  Nat.  Bank,  85 
Me.  46,  20  Atl.  965  (a  similar  case: 
■  The  evil  complained  of  is  based 
more  upon  fear  than  reality.  No 
vexatious  litigation  by  any  of  these 
respondents  has  been  shown.  No  evi- 
dence has  been  adduced  of  threats, 
even,  of  vexatious  suits.  The  mere 
allegation  of  a  belief  that  the  hold- 
ers intend  to  harass  the  complainant 
is  not  sufficient");  Fellows  v. 
Spaulding,  141  Mass.  92,  6  N.  E.  548 
(against  numerous  creditors  attempt- 
ing to  prove  their  claims  against  the 
plaintiff  in  a  court  of  insolvency: 
"  The  same  questions  of  law  are 
raised  in  each  case,  and  there  is  no 
reason  why  one  suit  in  the  usual 
course  of  proceedings  in  insolvency, 
the  others  being  continued  to  abide 
the  result,  should  not  settle  all  the 
cases");  Andel  v,  Starkel,  192  III. 
206,  61  N.  E.  356  (no  suits  threat- 
ened save  the  one  actually  brought)  ; 
Nash  V.  McCathern,  183  Mass.  345, 
67  N.  E.  323  (all  defendants  save  one 
disclaim  any  intention  of  suing  plain- 
tiff) ;  Kellett  v.  Ida  Clayton  &  G.  W. 


W.  R.  Co.,  99  Cal.  210,  33  Pac.  885. 
See  also  Equitable  Guarantee  &  T. 
Co.  v.  Donahue  (Del.),  45  Atl.  583, 
post,  note  to  §  266.  It  has  been  held 
that  two  suits  against  the  plaintiff 
do  not  constitute  a  "multiplicity" 
of  suits.  Druon  v.  Sullivan,  66  Vt. 
609,  30  Atl.  98.  In  Pacific  Exp.  Co. 
V.  Seibert,  44  Fed.  310,  a  case  of  the 
"  second  class,"  to  enjoin  the  collec- 
tion of  taxes,  the  court  said:  "It 
is  real  and  not  imaginary  suits,  it  is 
probable  and  not  possible  danger  of 
multiplicity  of  suits,  that  will  war- 
rant the  assumption  of  jurisdiction 
on  that  ground.  While  it  is  true,  as 
the  plaintiff  contends,  that  the  state 
might  bring  a  separate  suit  for  each 
day's  penalty,  the  court  would  hardly 
be  justified  in  acting  on  the  assump- 
tion that  it  would  do  so,  .  .  What- 
ever the  rule  may  be  in  the  case  of 
natural  persons,  the  court  will  pre- 
sume that  a  state  is  incapable  of  such 
a  vulgar  passion,  and,  until  the  fact 
is  shown  to  be  otherwise,  will  act  on 
the  assumption  that  a  state  will  not 
bring  any  more  suits  than  are  fairly 
necessary  to  establish  and  maintain 
its   rights." 

(a)  This  section  is  cited  in  Preteca 
V.  Maxwell  Land  Grant  Co.  (C.  C. 
A.),  50  Fed.  674.  Sections  252- 
260  are  cited  in  Crawford  County  v. 
Hathaway  (Nebr.),  93  N.  W.  781, 
796. 


§    252  EQUITY    JURISPRUDENCE.  382 

in  a  preceding  paragraph/  where  a  court  of  equity  inter- 
feres because  the  plaintiff  would  be  obliged  to  bring  a  suc- 
cession, perhaps  an  indefinite  number,  of  actions  at  law  in 
order  to  obtain  relief  appearing  even  to  be  sufficient  have 
generally  been  cases  of  nuisance,  waste,  trespass  to  land, 
disputed  boundaries  involving  acts  of  trespass  by  the  de- 
fendant, and  the  like,  the  wrong  complained  of  being  in  its 
very  nature  continuous.  If  the  plaintiff's  title  to  the  sub- 
ject-matter affected  by  the  wrong  is  admitted,  a  court  of 
equity  will  exercise  its  jurisdiction  at  once,  and  will  grant 
full  relief  to  the  plaintiff,  without  compelling  him  to  resort 
to  a  prior  action  at  law.  Whenever  the  plaintiff's  title  is 
disputed,  the  rule  is  settled  that  he  must,  in  general,  pro- 
cure his  title  to  be  satisfactorily  determined  by  at  least  one 
verdict  in  his  own  favor,  by  at  least  one  successful  trial  at 
law,  before  a  court  of  equity  will  interfere ;  but  the  rule  no 
longer  requires  any  particular  number  of  actions  or  trials. 
The  reason  for  this  requisite  is,  that  courts  of  equity  will 
not,  in  general,  try  disputed  legal  titles  to  land.  But  the 
rule  is  one  of  expediency  and  policy,  rather  than  an  essen- 
tial condition  and  basis  of  the  equitable  jurisdiction.^ "    In 

1  See  ante,  §  245. 

2  Hanson  v.  Gardiner,  7  Yes.  305,  309,  310;  Livingston  v.  Livingston,  6 
Johns.  Ch,  497,  500,  10  Am.  Dec.  353;  Parker  v.  Winnipiseogee,  etc.,  Co.,  2 
Black,  545,  551;  Hacker  v.  Barton,  84  111.  313;  Carlisle  v.  Cooper,  21  N.  J. 
Eq.  576,  579;  Corning  v.  Troy  Iron  Factory,  39  Barb.  311,  327,  34  Barb. 
485,  492,  493;  Webb  v.  Portland  Mfg.  Co.,  3  Sum.  189;  Lyon  v.  McLaughlin, 
32  Vt.  423,  425,  420;  Sheetz's  Appeal,  35  Pa.  St.  88,  95;  Holsman  v.  Boiling 

(b)  This    section    is    cited,    to    the  4,  37  Am.  St.  Rep.  101,  22  L.  R.  A. 

effect  that  title  must  be  first  estab-  233;   Nichols  v.  Jones,   19   Fed.  855; 

lished  at  law,   in   Carney  v.  Hadley,  Blondell  v.  Consolidated  Gas  Co.,  89 

32  Fla.  344,  14  South.  4,  37  Am.  St.  Md.   732,  43   Atl.   817,  46   L.  R.   A. 

Rep.   101,  22  L.   R.  A.  233;   Wabash  187;  Boston  &  M.  R.  R.  Co.  v.  Sulli- 

R.    Co.   V.    Englcman.    IGO   Ind.    329,  van,    177   Mass.   230,   58   N.   E.    689; 

60  N.  E.  892;   Bowling  v.  Crook,  104  Davis  v.  Frankenlust  Tp.,   118  Mich. 

Ala.  130,  16  South.  131;   Kennedy  v.  494,   76   N.   W.    1045;    Warren   Mills 

Elliott,   85   Fed.   832.     The   following  v.   N.    O.   Seed    Co.,   65   Miss.    391,   4 

cases      are      illustrations      of      relief  South.     298;     Birmingham     Traction 

against  continuing  trespasses:      Car-  Co.  v.  S.  B.  T.  &  T.  Co.,  119  Ala.  144, 

ncy  V.  Hadley,  32  Fla.  344,  14  South.  24    South.    731;    Golden    v.    Health 


383  TO    PREVENT   A    MULTIPLICITY    OF    SUITS.  §    252 

addition  to  these  ordinary  cases  of  nuisance  and  similar 
continuous  wrongs  to  property,  there  are  some  other  spe- 
cial instances  in  which  a  court  of  equity  has  interfered  and 
determined  the  entire  controversy  by  one  decree,  in  order 
to  prevent  a  multiplicity  of  suits,  where  otherwise  the  plain- 
tiff would  be  compelled  to  bring  several  actions  at  law 

Spring  Co.,  14  N.  J.  Eq.  335;  Sheldon  v.  Rockwell,  9  Wis.  166,  179,  76  Am. 
Dec.  265  (interfering  with  easements  of  water)  ;  McRoberts  v.  Washburne, 
10  Minn.  23,  30;  Letton  v.  Goodden,  L.  R.  2  Eq.  123,  130  (interfering  with 
an  exclusive  ferry  franchise)  ;  Eastman  v.  Anioskeag,  etc.,  Co.,  47  N.  H.  71,  79, 
80.  For  the  limitations  on  this  application  of  the  doctrine,  see  Hughlett 
V.  Harris,  1  Del.  Ch.  349,  352.  12  Am.  Dec.  104.  In  Parker  v.  Wiunipi- 
Beogee,  etc.,  Co.,  2  Black,  545,  551,  the  rule  was  thus  stated  by  Swayne,^ 
J.:  Equity  will  restrain  a  private  nuisance  by  injunction,  in  order  "to 
prevent  oppressive  and  interminable  litigation  or  a  multiplicity  of  suits, 
or  when  the  injury  is  of  such  a  nature  that  it  cannot  be  adequately  compen- 
sated by  damages  at  law,  or  is  such,  from  its  continuance  or  permanent 
mischief,  as  must  occasion  a  constantly  occurring  grievance,  which  cannot  be 
prevented  otherwise  than  by  an  injunction."  In  Eastman  v.  Amoskeag,  etc., 
Co..,  47  N.  H.  71,  79,  the  court  refused  to  interfere  and  restrain  an  alleged  pri- 
v;itc  nuisance,  because  the  plaintiff's  title  was  disputed,  and  had  not  been 
established  by  even  one  action  at  law. 

Dep't,  47  N.  Y.  Supp.  623,  21  App.  In    Nevitt    v.    Gillespie,     1    How. 

Div.   420;    Hahl    v.    Sugo,    61    N.    Y.  (Miss.)    108,  26  Am.  Dec.  696,  a  case 

Supp.  770,  46  App.  Div.  632;  Olivella  of  waste,  the  rule  was  laid  down  as 

V    New  York  &  H.  R.  Co.,  64  N.  Y.  follows:       "A    court    of    equity    will 

Supp.  1086,  31  Misc.  Rep.  203;  Gibbs  not  entertain  a  bill  of   peace,   when 

V.  McFadden,  39  Iowa,  371;  Ten  Eyck  the  right  is  controverted  by  two  per- 

v.   Sjoburg,   68   Iowa,   625,  27   N.  W.  sons  only,  until  after  the   right  haa 

785.     But  see  Roebling  v.  First  Nat.  been   established    satisfactorily   by   a 

Bank,  30  Fed.  744.     For  further  dis-  trial    at   law."      See    also    Taylor    t. 

cussion  of  this  subject,  see  Pom.  Eq.  Pearce,   71   111.  App.   525    (trespass). 

Rem.,      "  Injunction     against     Tres-  In  Kellett  v.  Ida  Clayton,  etc.,  Co., 

pass."  99  Cal.  210,  33  Pac.  885,  it  was  held 

In   the   following   cases   relief   was  that  a  party  who  by  contract  claimed 

granted  against  continuing  nuisances :  a  right  to  pass  over  a  road  without 

Campbell   v.   Seaman,  63  N.  Y,  568,  paying  toll  could  not  enjoin  interfer- 

20  Am.  Rep.  567;  Coatsworth  v.  Le-  ence  with  this  right  imtil  it  was  es- 

high  Val.  R.  Co.,  156  N.  Y.  451,  51  tablished  at  law. 

N.  E.  301,  affirming  48  N.  Y.  Supp.  Although  equity  will  not  Interfere 

511,   24   App.   Div.  273;    Sullivan   v.  if  the  complainant's  title  be  denied, 

Jones  &  Laughlin  Steel  Co.  (Pa.  St.),  until  he  has  vindicated  it  at  law,  it 

57    Atl.    1065.      See,    further.    Pom.  may    retain   the   bill    until    that   has 

Eq.  Rem.,  "  Injunction  against  Nui-  been  done.     Washburn's  Appeal,   lOS' 

Bances."  Pa.  St.  480. 


§    253  EQUITY   JURISPRUDENCE.  384 

against  the  same  adversary,  and  with  respect  to  the  same 
subject-matter.^ 

§  253.  Second  Class. —  Tlie  second  class,  according  to  my 
previous  arrangement,  consists  of  two  branches.  In  the 
first  of  these  the  defendant  has  brought,  or  threatens  to 
bring,  successive  actions  at  law  to  recover  the  same  subject- 

3  Biddle  v.  Ramsey,  52  Mo.  153,  159,  is  an  example.  Plaintiff  alleged 
that  he  had  leased  premises  to  the  defendant,  and  by  the  lease  it  was  stipu- 
lated that  near  the  end  of  the  term  each  should  name  an  appraiser,  and  they 
a  third;  and  that  these  three  appraisers  should  unanimously  assess  the 
value  of  the  improvements  made  by  the  defendant,  and  the  yearly  rental; 
and  that  the  plaintiff  should  have  an  option  to  buy  such  improvements  at 
the  sum  thus  fixed,  or  to  grant  a  new  lease  to  the  defendant  at  the  rent  thus 
fixed,  etc.;  that  defendant  had  by  his  fraud  prevented  any  unanimous  action 
of  the  appraisers,  and  had  kept  possession  of  the  premises  for  more  than  three 
years  after  the  end  of  the  term  without  paying  any  rent.  Held,  that  the 
suit  in  equity  was  proper,  in  order  to  give  the  plaintiff  full  relief,  and  to  pre- 
vent a  multiplicity  of  actions  at  law;  viz.,  plaintiff  would  be  obliged  to  bring 
an  action  of  ejectment  to  recover  possession  of  the  premises,  and  then  other 
actions  to  settle  questions  as  to  the  pajTiient  for  the  buildings  and  other 
improvements.  I  think  the  correctness  of  this  decision  may  be  doubted.  The 
plaintiff's  interest  and  causes  of  action  were  wholly  legal,  and  the  relief 
which  he  obtained  was  also  purely  legal.  It  is  plain,  at  all  events,  that  the 
special  cases  mentioned  in  the  text  must  be  few  in  number.  For  a  clear 
statement  of  the  restrictions  upon  this  mode  of  exercising  the  equitable 
jurisdiction  to  prevent  a  multiplicity  of  suits,  see  Richmond  v.  Dubuque,  etc., 
R.  R.  Co.,  33  Iowa,  422,  487,  488.c  Black  v.  Shreeve,  7  N.  J,  Eq.  440, 
456,  457,  is  a  much  more  appropriate  and  instructive  example.  A  very 
long,  peculiar,  and  complicated  agreement  had  been  executed  by  the  plain- 
tiffs and  a  large  number  of  other  persons,  by  which  each  agreed  to  pay  a 
certain  contributory  share,  the  amount  depending  upon  many  contingencies, 
towards  making  up  an  expected  deficiency.  The  plaintiffs  paid  the  whole, 
and  would  necessarily  be  obliged  to  maintain  numerous  and  successive  ac- 
tions at  law  in  order  to  establish  their  own  rights,  and  to  ascertain  and  re- 
cover the  amoimts  payable  by  the  other  parties.  It  was  held  that,  to 
avoid  this  multiplicity  of  actions,  the  plaintiffs  could  sue  in  equity,  and  have 
the  whole  matter  settled  by  one  decree.  It  should  be  observed  that  the 
rights,  liabilities,  and  remedies  of  all  the  parties  were  purely  legal,  since  they 
were  in  no  sense  sureties.* 

(c)  Post,  in  note  to  §  2G3.  of  the  contract  would  require  numer- 

(••)    In   Stovall   V.   McCutchen,    107  ous  actions  at  law,  and  consequently 

Ky.  577,  92  Am.  St.  Rop.  373,  54  S.  granted  an  injunction.     For  another 

W.  909,  47  L.  R.  A.  287,  a  number  of  instance  of  specific  performance  of  a 

merchants  agreed  to  close  their  stores  contract  on  the  ground  that  it  called 

at    a    certain    hour    each    day.      The  for  a   continuous   scries  of  acts,   see 

fcurt  held  that  the  recurring  breach  Shiracr  v.  Morris  Canal  &  B.  Co.,  27 


385  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §    253 

matter  from  the  plaintiff,  where  from  the  rules  of  the  legal 
procedure  the  title  is  not  determined  by  a  judgment  in  any 
such  action  or  number  of  actions.  This  branch  has  there- 
fore been  ordinarily  confined  to  cases  of  successive  actions 
of  ejectment  to  recover  the  same  tract  of  land  from  the 
plaintiff.  It  follows  as  a  matter  of  course  that  equity  will 
not  interfere  on  behalf  of  the  plaintiff,  and  restrain  the 
defendant's  proceedings,  until  the  plaintiff's  title  has  been 
sufficiently  established  by  the  decision  of  at  least  one  action 
at  law  in  his  favor.  Indeed,  the  interference  of  equity  as- 
sumes that  the  plaintiff's  legal  right  and  title  have  been 
clearly  determined,  and  its  sole  object  is  to  quiet  that  title 
by  preventing  the  continuance  of  a  litigation  at  law  which 
has  become  vexatious  and  oppressive,  because  it  is  unneces- 
sary and  unavailing.  A  court  of  equity  will  not  therefore 
interfere  to  restrain  the  defendant's  litigation  as  long  as 
the  plaintiff's  title  is  uncertain.^  *  And  in  analogous  cases, 
not  of  ejectment,  the  court  will  interfere  and  restrain  the 

1  Leighton  v.  Leighton,  1  P.  Wms.  671;  Earl  of  Bath  v.  Sherwin,  Prec. 
Ch.  261,  10  Mod,  1,  1  Brown  Pari.  C,  266,  270,  2  Brown  Pari.  C,  Tomlins'a 
ed.,  217;  Devonshire  v.  Newenham,  2  Schoales  &  L.  208,  209;  Weller  v. 
Smeaton,  1  Cox,  102,  1  Brown  Ch.  573;  Earl  of  Darlington  v.  Bowes,  1  Eden, 
270,  271,  272;  Alexander  v.  Pendleton,  8  Cranch,  462,  468;  Trustees  of  Hunt- 
ington V.  Nicoll,  3  Johns.  566,  589,  590,  591,  595,  601,  602;  Eldridge  v.  Hill, 
2  Johns.  Ch.  281;  Woods  v.  Monroe,  17  Mich.  238;  Knowles  v.  Inches,  12 
Cal.  212;  Patterson  v.  McCamant,  28  Mo.  210;  Bond  v.  Little,  10  Ga.  395, 
400;  Harmer  v.  Gwynne,  5  McLean,  313,  315. 

N.  J.  Eq.  364.     On  the  same  ground,  ment   will   not   generally   be   granted 

specific  performance  of  a  contract  to  relief   in   equity   when    his   title   has 

pay  alimony  in   certain  amounts   at  been  determined   in  only  one   action, 

fixed  periods  was  enforced  in  Peter-  See  also   Craft   v.   Lathrop,   2   Wall, 

son  V.  Fleming,  63  111.  App.  357.  Jr.  103,  Fed.  Cas.  No.  3,318;  Pratt  v. 

(a)  This     paragraph     is     cited     in  Kendig,    128   111.   293,   21   N.   E.   495 

Wehrman  v.  Conklin,  155  U.  S.  314,  (immaterial   whether   the   proceeding 

15  Sup.  Ct.  129;  Kennedy  v.  Elliott,  in   which   the   right   has   been   estab- 

85  Fed.  832 ;   Gordon  v.  Jackson,  72  lished  is  an  action  at  law  or  a  suit 

Fed.   86.     The  text  is  quoted  in  Di-  in  equity)  ;  Marsh  v.  Reed,  10  Ohio, 

shong  V.   Finkbiner,  46   Fed.   12,   16,  347;   Caro  v.  Pensacola  City  Co.,   19 

where  many  cases  are  reviewed,  and  Fla.    766;    Holland    v.    Challen,    110 

it  is  held  that  the  defendant  in  eject-  U.  S.  15,  19,  3  Sup.  Ct.  495;  Sharon 

Vol.  1  —  25 


§  253 


EQUITY   JURISPRUDENCE. 


386 


defendant's  further  prosecution  of  successive  actions  at 
law,  and  will  thus  establish  and  quiet  the  plaintiff's  right, 
when  all  the  questions  of  law  and  fact  involved  in  these 
actions  have  already  been  fully  determined  in  the  plaintiff's 
favor  by  some  former  judicial  proceeding  between  the  same 
parties.^ 

2  As  in  Paterson,  etc.,  R.  R.  t.  Jersey  City,  9  N.  J.  Eq.  434,  the  city 
ofilcials  had  assessed  the  property  of  the  railroad  for  taxes,  state,  county,  and 
city.  The  railroad  brought  a  writ  of  cei'tiorari  to  the  supreme  court,  which 
held  that  all  these  taxes  were  invalid  because  the  corporation  was  by  its 
charter  exempted  from  all  general  taxation,  and  this  decision  was  affirmed 
by  the  court  of  errors.  Notwithstanding  these  decisions,  the  city  afterwards 
assessed  the  same  kind  of  taxes  again  upon  the  same  property  of  the  railroad 
in  two  successive  years,  and  was  taking  the  steps  provided  by  law  for  the  collec- 
tion of  these  latter  taxes  by  a  compulsory  sale  of  the  company's  property.  The 
railroad  thereupon  brought  this  suit  in  equity  for  an  injunction  against  the 
city  and  its  officials.  Held,  a  proper  occasion  for  equity  to  restrain  a  multi- 
plicity of  suits.  If  the  plaintiff's  right  has  been  established  by  a  decision  at 
law,  there  is  no  requirement  of  any  particular  number  of  actions  at  law  before 
a  suit  in  equity  can  be  maintained;  one  judgment  at  law  may  be  sufficient.1'> 


V.  Tucker,  144  U.  S.  542,  12  Sup.  Ct. 
720;  Boston  &  Montana  C.  C.  &  S. 
M.  Co.  V.  Montana  Ore  P.  Co.,  188 
U.  S.  632,  23  Sup.  Ct.  434.  Ante, 
notes  to  §  248.  In  Texas,  where  the 
courts  are  empowered  to  give  such 
relief  as  the  case  may  require, 
whether  legal  or  equitable,  it  is  held 
that  the  rules  that  one  will  not  be 
quieted  in  his  title  until  he  has  estab- 
lished it  at  law,  and  that  one  not  in 
possession  cannot  maintain  an  action 
to  remove  a  cloud  from  his  title, 
have  no  application;  Thomson  v. 
Locke,  66  Tex.  383,  389,  citing  the 
text,  §§  242,  253,  254,  258.  In 
Thompson's  Appeal,  107  Pa.  St.  559, 
a  married  woman  in  possession  of  her 
separate  estate  was  allowed  to  main- 
tain a  bill  in  equity  to  restrain  re- 
peated actions  of  ejectment  by  a  pur- 
chaser at  sheriff's  sale  of  said  prop- 
erty, under  a  judgment  against  her 
husband,  where  such  actions  were 
not  brought  in  good  faith  and  were 
not  prosecuted  to  judgment,  but  were 


brought  with  the  alleged  purpose  of 
compelling  the  payment  of  her  hus- 
band's debt;  and  where  the  actions 
sought  to  be  restrained  are  of  sueli 
a  nature  that  there  is  no  opportunity 
to  determine  the  title,  a  bill  will  lie, 
without  the  title  having  been  first 
determined  at  law:  Langdon  v. 
Templeton,  61  Vt.  119.  In  Porter  v. 
Reed,  123  Mo.  587,  27  S.  W.  351, 
there  had  been  one  verdict  only  in 
complainant's  favor,  but  several 
other  actions  had  been  brought 
against  him  and  abandoned, 

(b)  After  the  illegality  of  a  tax  has 
been  established  at  law,  equity  will 
restrain  future  suits  to  collect.  Bank 
of  Kentucky  v.  Stone,  88  Fed.  383. 
In  Union  &  Planters'  Bank  v.  Mem- 
pliis.  111  Fed.  501,  49  C.  C.  A.  455, 
the  complainant  alleged  that  the 
right  of  the  defendant  to  tax  its 
capital  stock  had  been  tried  and  de- 
nied. Accordingly,  an  injunction  to 
prevent  future  repetitions  of  the  as- 
sessment was  allowed  in  order  to  prf»- 


387  TO   PKEVENT   A    MULTIPLICITY    OF    SUITS.  §    25-^ 

§  254.*  In  the  second  branch  of  the  same  class  the  single- 
defendant  has  brought  a  number  of  simultaneous  actions  at 
law  against  the  plaintiff,  all  depending  upon  similar  facts^ 
and  circumstances,  and  involving  the  same  legal  questions^ 
so  that  the  decision  of  one  would  virtually  be  a  decision  of 
all  the  others.  A  court  of  equity  may  then  interfere  and, 
restrain  the  prosecution  of  these  actions,  so  that  the  deter- 
mination of  all  the  matters  at  issue  between  the  two  parties 
may  be  brought  within  the  scope  of  one  judicial  proceeding 
and  one  decree,  and  a  multiplicity  of  suits  may  thereby  be- 
prevented.  It  must  be  admitted  that  this  exercise  of  the- 
equitable  jurisdiction  is  somewhat  extraordinary,  since  the- 
rights  and  interests  involved  are  wholly  legal,  and  the  sub- 
stantial relief  given  by  the  court  is  also  purely  legal.  It, 
may  be  assumed,  therefore,  that  a  court  of  equity  will  not. 
exercise  jurisdiction  on  this  particular  ground,  unless  its 
interference  is  clearly  necessary  to  promote  the  ends  of 
justice,  and  to  shield  the  plaintiff  from  a  litigation  which, 
is  evidently  vexatious.  It  should  be  carefully  observed  that 
a  court  of  equity  does  not  interfere  in  this  class  of  cases  to 
restrain  absolutely  and  completely  any  and  all  trial  and  de- 
cision of  the  questions  presented  by  the  pending  actions  at 
law ;  it  only  intervenes  to  prevent  the  repeated  or  numerous 
trials,  and  to  bring  the  whole  within  the  scope  and  effect  of 
one  judicial  investigation  and  decision.  It  should  also  be  ob- 
served that  if  the  pendicg  actions  at  law  are  of  such  a  nature 
or  for  such  a  purpose,  that,  according  to  the  settled  rules  of 
the  legal  procedure,  they  may  all  be  consolidated  into  one, 
and  all  tried  together  by  an  order  of  the  court  in  which  they 
or  some  of  them  are  pending,  then  a  court  of  equity  will: 
not  interfere;  since  the  legal  remedy  of  the  plaintiff  is 

vent    a    multiplicity    of    suits.       In  (a)  This  section  is  cited  in  Eureka, 

Siever  v.  Union  Pac.  R.  Co.   (Nebr.),  &  K.  R.  R.  Co.  v.  Cal.  &  N.  R.  Co.,. 

93  N.  W.  943,  the  institution  of  sue-  109    Fed.    509,    48    C.    C.    A.    517; 

cessive    garnishment    proceedings    to  Thomson  v.  Locke,  66  Tex.  383,  389; 

reach     complainant's     wages,     which  Galveston,    H.    &    S.    A.    R'y    Co.    v. 

had  been  adjudged  to  be  exempt,  waa  Dowe,  70  Tex.  5,  7  S.  W.  303, 
enjoined. 


§  255 


EQUITY   JUKISPRUDENCB. 


388 


'Complete,  certain,  and  adequate,  tliere  is  no  necessity  for 
Ms  invoking  the  aid  of  the  equitable  jurisdiction.^  ^ 

§  255.  Third  and  Fourth  Classes. —  In  pursuing  this  in- 
quiry into  the  extent  and  limitations  of  the  doctrine,  the 

1  Kensington  v.  White,  3  Price,  164,  167;  Third  Avenue  R.  R.  v.  Mayor, 
etc.,  of  N.  Y.,  54  N.  Y.  159,  162,  163;  West  v.  Mayor  of  N.  Y.,  10  Paige,  539. 
In  Kensington  v.  White,  3  Price,  164,  defendant  had  brought  five  separate 
actions  at  law  on  five  different  policies  of  insurance  effected  on  different  ships, 
but  between  the  same  parties  and  at  the  same  time;  the  defense  was  sub- 
stantially the  same  in  all, —  fraud  of  the  assured.  The  complainants  (defend- 
ants in  the  five  actions),  the  insurers,  then  brought  this  suit  in  equity,  to 
have  all  the  matters  tried  in  one  suit,  praying  for  a  discovery,  and  an  injunc- 
tion against  the  actions  at  law.  The  bill  was  held  proper,  in  order  to  avoid 
a  multiplicity  of  suits,  as  the  whole  was  really  one  transaction.  In  Third 
Avenue  R.  R.  v.  Mayor  of  N.  Y.,  54  N.  Y.  159,  162,  163,  the  city  had  brought 
seventy-seven  actions  in  a  justice's  court  to  recover  penalties  for  violating  a 
'City  ordinance  concerning  the  running  of  cars  without  a  license,  each  action  for 
a  separate  penalty.  All  the  actions  depended  upon  similar  facts  and  upon  the 
same  question  of  law,  viz.,  whether  the  railroad  was  liable  under  the  ordinance; 
.and  a  decision  of  one  would  virtually  decide  all.     The  company  brought  this 


{h)  The  case  of  Galveston,  H.  & 
S.  A.  R'y  Co.  v.  Do  we,  70  Tex.  5,  7 
S.  W.  368,  was  very  similar  to  that 
of  Third  Avenue  R.  R.  Co.  v.  Mayor 
of  N.  Y.,  54  N.  Y.  159,  162,  163. 
A  railroad  contractor  had  issued  a 
•number  of  time-checks,  thirty  of 
which,  by  assignment,  had  become  the 
property  of  the  defendant.  The  lat- 
ter brought  separate  suits  on  a  large 
number  of  these  claims  in  a  justice's 
court,  which  had  no  power  to  con- 
solidate the  actions.  An  injunction 
-waa  granted  against  the  prosecution 
ol  the  separate  suits,  although  the 
plaintiff  had  not  established  his  right 
in  an  action  at  law.  In  Norfolk  & 
N.  B.  Hosiery  Co.  v.  Arnold,  143  N. 
Y.  265,  38  N.  E.  271,  the  plaintiff  at 
law  recovered  judgment  for  royalties. 
Tlie  defendant  appealed,  whereupon 
plaintiff  threatened  successive  ac- 
tions for  further  installments.  The 
plaintiff  was  financially  irresponsible, 
and  ample  security  had  been  given. 
The  court  granted  an  injunction  to 
•tay  the  further  suits.     Third  Avenue 


R.  R.  Co.  V.  Mayor,  54  N.  Y.  159,  was 
cited.  Featherston  v.  Carr,  132  N.  C. 
800,  44  S.  E.  592,  was  a  similar  case 
(prosecution  of  monthly  suits  for 
rent,  pending  appeal  from  judgment 
awarding  possession  of  the  premises, 
enjoined).  In  Cuthbert  v.  Chauvet, 
60  Hun,  577,  14  N.  Y.  Supp.  385, 
20  Civ.  Proc.  Rep.  391,  the  plaintiff 
at  law  brought  ten  actions  of  eject- 
ment simultaneously  and  depending 
upon  the  same  facts.  An  injunction 
was  issued  against  all  the  actions 
but  one.  Third  Avenue  R.  R.  Co.  v. 
Mayor,  54  N.  Y.  159,  was  cited.  In 
Peters  v.  Prevost,  1  Paine  C.  C.  64, 
Fed.  Cas.  No.  11,032,  the  complainant 
souf^ht  to  enjoin  ninety-two  simul- 
taneous actions  of  ejectment.  The 
court  held  that  the  actions  might  be 
consolidated  at  law,  and  refused  re- 
lief. In  Clcland  v.  Campbell,  78  III. 
App.  624,  injunction  was  refused 
against  the  prosecution  of  twenty- 
three  simultaneous  actions  at  law, 
until  the  complainant's  right  should 
be  established  at  law. 


389  TO   PREVENT   A   MULTIPLICITY   OF   SUITS.  §    255 

third  and  fourth  of  my  classes  may  with  advantage  be  con- 
sidered together.  In  the  third,  a  number  of  persons  have 
popnrnto  nnd  distinct  interests,  but  still  united  by  some- 
common  tie,  against  one  determined  party,  and  these  in- 

suit  in  equity  to  restrain  the  prosecution  of  all  these  actions  except  one,  offer- 
ing to  abide  the  final  decision  iu  that  one.  The  suit  was  sustained,  and  the  re- 
lief granted,  becaiose  a  justice  court  had  no  power  to  consolidate  these  actions. 
The  decision  was  placed  expressly  upon  the  power  of  equity  to  prevent  & 
multiplicity  of  suits,  and  the  impossibility  of  the  plaintiff's  being  relieved 
in  any  other  manner  from  a  vexatious  litigation.  The  case  was  held  to- 
be  distinguishable  from  West  v.  Mayor,  etc.,  10  Paige,  539,  in  which  an  ap- 
parently contrary  decision  was  made,  because  in  the  latter  case  the  plain- 
tiff, West,  sought  to  restrain  absolutely  all  the  actions  which  were  pending 
against  him.  I  would  add  that  some  of  the  language  in  the  chancellor's- 
opinion  in  West  v.  Mayor,  etc.,  10  Paige,  539,  goes  much  further  than  the- 
distinction  thus  made,  and  can  hardly  be  reconciled  with  the  decision  of  the- 
court  of  appeals;  but  the  decision  in  West  v.  Mayor,  etc.,  10  Paige,  539,  is 
clearly  distinguishable.  In  West  v.  Mayor,  etc.,  10  Paige,  539,  the  city  had 
brought  a  considerable  number  of  actions  against  the  plaintiff,  to  recover 
penalties  for  alleged  violations,  all  similar  in  their  nature,  of  a  city  ordinance. 
None  of  these  actions  had  yet  been  tried.  Plaintiff  then  sued  in  equity  to  have 
all  these  actions  enjoined,  and  to  try  the  whole  matter  in  the  single  equity- 
suit.  Chancellor  Walworth  held  that  a  court  of  equity  could  not  interfere,, 
because, —  1.  That  equity  would  never  assume  jurisdiction  in  a  case  analogous 
to  the  present  until  the  plaintiff  had  established  his  right  by  a  successful 
defense  in  at  least  one  of  the  actions;  and  2.  Tliat  equity  would  never  interfere 
when  the  whole  question  was  one  of  law,  and  if  the  law  was  with  the  plain- 
tiff he  would  have  a  perfect  defense  in  each  action.  Such  suits  in  equity  hav& 
been  sustained  where  the  questions  were  of  fact,  or  of  mixed  law  and  fact; 
but  no  bill  can  be  sustained  to  restrain  a  defendant  from  suing  at  law,  where 
only  a  question  of  law  is  involved,  and  when  the  defendant  at  law  (the  plain- 
tiff in  equity)  must  finally  succeed  in  his  defense  if  the  law  is  in  his  favor. 
It  is  plain  that  both  of  these  general  grounds  adopted  by  the  chancellor 
are  irreconcilable  with  the  subsequent  decision  by  the  court  of  appeals  last 
quoted.c 

(c)   Injunction    against    Numerous  the  complainant  has  first  established 

Prosecutions  for  Violation  of  a  Munic-  the  invalidity  of  the  ordinance  by  a 

ipal     Ordinance, —  On     the     question  successful  defense  in  a  suit  at  law. 

whether  the  complainant's  right  must  Poyer  v.  Village  of  Des  Plaines,  I'iS 

first  be  established  at  law,  the  recent  111.    Ill,   5   Am.    St.   Rep.   494.      See 

cases  are  conflicting.     In  some  juris-  also   Chicago,  B.   &   Q.   R.   R.   Co.   v. 

dictions,  relying,  largely,  on  the  au-  City  of  Ottawa,  148  111.  397,  36  N.  IL. 

thority  of  West  v.  Mayor,  10  Paige,  85;   Yates  v.  Village  of  Batavia,  79 

539,  successive  prosecutions  under  a  111.   500;    Ewing  v.  City  of   Webster 

municipal   ordinance  will  not  be  en-  City,   103   Iowa,  226,   72  N.   W.  511. 

joined  on  the  ground  of  the  preven-  The  majority  of  the  recent  decisions, 

tion  of  a  multiplicity  of  suits,  unless  however,  appear  to  be  in  accord  with 


§  255 


EQUITY    JURISPRUDENCE. 


390 


terests  may  perhaps  be  enforced  by  one  equitable  suit 
brought  by  all  the  persons  joining  as  co-plaintiffs,  or  by 
one  suing  on  behalf  of  himself  and  all  the  others,  or  even 
by  one  suing  for  himself  alone.^  The  fourth  is  the  exact 
■converse  of  the  third.  One  determined  party  has  a  general 
right  against  a  number  of  persons,  common  to  all  in  some 
of  its  features,  but  still  affecting  each  individually,  and  only 
"97ith  respect  to  his  separate,  distinct  interests,  so  that  each 
of  these  persons  has  a  separate  and  distinct  claim  in  opposi- 
tion to  the  asserted  right.**    It  is  plain  that  the  same  funda- 


tlie  text.  Joseph  Schlitz  Brewing  Co. 
V.  City  of  Superior,  117  Wis.  297,  93 
^.  W.  1120  (enforcement  of  void  ordi- 
nance enjoined  though  none  of  the 
threatened  prosecutions  had  in  fact 
been  commenced)  ;  Milwaukee  El.  11. 
&  L.  Co.  V.  Bradley,  108  Wis.  467,  84 
N.  W.  870.  In  City  of  Hutchinson  v. 
•Beckham,  118  Fed.  399  (C.  C.  A.),  a 
suit  to  enjoin  the  enforcement  of  an 
illegal  city  ordinance  imposing  a  li 
cense  tax,  Thayer,  Cir.  J.,  observes: 
"  Now,  conceding  that  the  validity  of 
the  ordinance  might  have  been  tried 
in  any  one  of  the  criininal  prosecu- 
tions thus  brought  by  the  city,  yet, 
as  the  right  of  appeal  existed  from 
any  judgment  which  might  have  been 
rendered  therein,  it  is  apparent  that 
months,  and  possibly  some  years, 
might  have  elapsed  before  the  in- 
validity of  the  ordinance  would  have 
teen  definitely  established,  and  that 
in  the  meantime  the  plaintiffs  might 
and  probably  would  have  been  com- 
pelled to  defend  a  multitude  of  suits, 
and  submit  to  daily  interruptions  of 
'their  business,  which  would  have 
proven  to  be  very  annoying  and  prob- 
ably disastrous."  In  Sylvester  Co. 
V.  St.  Louis,  130  Mo.  323,  51  Am.  St. 
Rep.  506,  32  S.  W.  649,  an  adjudica- 
tion at  law  of  the  invalidity  of  the 
ordinance  was  held  unnocfSHiiry.  Tiie 
court  said:  "  Wliile,  under  the  former 
■•ystem  of  jurisprudence,  in  which  re- 


lief in  equity  was  administered  by  a 
different  tribunal,  and  by  a  different 
procedure  from  those  that  gave  relief 
at  law,  courts  of  equity  have  some- 
times refused  to  interfere  before  the 
right  was  established  at  law  ( West  v. 
Mayor,  etc.,  10  Paige,  539),  there 
seems  no  good  reason,  under  the 
present  system,  in  code  states,  where 
both  are  blended,  why  such  rcliet 
should  not  be  granted  in  the  first  in- 
stance by  injunction."  See  also  Davis 
v.  Fasig,  128  Ind.  271,  27  N.  E.  726; 
City  of  Rushville  v.  Rushville  Natural 
Gas  Co.,  132  Ind.  575,  2S  N.  E.  853, 
15  L.  R.  A.  321.  For  further  cases 
on  this  subject,  consult  Pomeroy's 
Eq.  Rem.,  "Injunction  against  Munic- 
ipal Corporations."  For  relief  in 
equity  dependent  on  the  fact  that  the 
ordinance  affects  numerous  persons, 
see  post,  §  261,  note.  Third  Class, 
(I),  (b). 

(a)  This  section  is  cited  in  Liver- 
pool &  L.  &  G.  Ins.  Co.  V.  Clunie, 
88  Fed.  160,  167;  Washington  County 
V.  Williams,  111  Fetl.  801,  815,  49 
C,  C.  A.  021,  dissenting  opinion  of 
Sanborn,  Cir.  J.;  Macon,  etc.,  R.  R. 
Co.  V.  Gibson,  85  Ga.  1,  21  Am.  St. 
Rep.  135,  11  S.  E.  442;  Osborne  v. 
Wisconsin  Cent.  R.  Co.,  43  Fed.  824, 
by  Harlan,  J.,  all  illustrating  the 
■■lutlior'a  "third  class." 

(b)  This  and  the  following  sections 
are  cited  in  Smith  v.  Dobbins,  87  Ga. 


391  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §    255 

mental  questions  must  arise  in  both  of  these  classes.  The 
first  and  most  important  question  which  meets  us  is,  What 
must  be  the  character,  the  essential  elements,  and  the  ex- 
ternal form  of  the  common  right,  claim,  or  interest  held  by 
the  number  of  persons  against  the  single  party  iil  the  third 
<3lass,  and  by  the  single  party  against  the  number  of  persons 
in  the  fourth  class,  in  order  that  a  court  of  equity  may  ac- 
quire or  exercise  jurisdiction  for  the  purpose  of  preventing 
a  multiplicity  of  suits,  and  may  determine  the  rights  of  all 
and  give  complete  relief  by  one  decree  ?  Is  it  necessary  that 
the  common  bond,  element,  or  feature  should  inhere  in  the 
very  rights,  interests,  or  claims  themselves  which  subsist 
between  the  body  of  persons  on  the  one  side  and  the  single 
party  on  the  other,  and  should  affect  the  nature  and  form  of 
those  rights,  interests,  or  claims  to  such  an  extent  that  they 
create  some  positive  and  recognized  existing  legal  relation  or 
privity  between  the  individual  members  of  the  groiip  of  per- 
sons, as  well  as  between  each  of  them  and  the  single  deter- 
minedparty  to  whom  they  all  stand  in  an  adversarypositionf 
Or  is  it  enough  that  the  common  bond  or  element  consists 
solely  in  the  fact  that  all  the  rights,  interests,  or  claims  sub- 
sisting between  the  body  of  persons  and  the  single  party 
have  arisen  from  the  same  source,  from  the  same  event,  or 
the  same  transaction,  and  in  the  fact  that  they  all  involve 
and  depend  upon  similar  questions  of  fact  and  the  same  ques- 
tions of  law,  so  that  while  the  same  positive  legal  relation 
exists  between  the  single  determined  party  on  the  one  side 
und  each  individual  of  the  body  of  persons  on  the  other, 
no  such  legal  relation  exists  between  the  individual  mem- 
bers themselves  of  that  body? — as  among  themselves  their 
respective  rights,  interests,  and  claims  against  the  common 
adversary  party,  otherwise  than  above  stated,  are  wholly 
separate  and  distinct.    This  question  lies  at  the  foundation 

30S,    13    S,    E.    496,    a    case    of    the  Rep.  469;   Kellogg  v.  Chenango  Val- 

"  fourth  class."   This  section  is  cited  in  ley  Sav.  Bk.,  42  N.  Y.  Supp.  '379,  11 

Illinois  Cent.  R.  Co.  v.  Garrison,  8i  App.  Div.  458,  cases  of  the  "  foxirth 

Miss.  257,  32  South.  996,  95  Am.  St.  class." 


§    256  EQUITY   JUEISPEUDENCE.  392^ 

of  the  whole  discussion.  Others  have  been  suggested,  and 
have  been  considered  by  the  courts,  but  they  are  all  finally 
resolved  into  this,  and  all  depend  upon  its  final  solution  for 
their  answer.  It  is  in  the  solution  of  this  most  important 
question,  and  in  its  application  to  particular  circumstances^, 
that  most  of  the  conflict  of  opinion  among  the  American 
courts  especially  has  arisen.  I  shall  endeavor  to  present  all 
these  conflicting  views  briefly  but  fairly,  and  to  suggest  my 
own  opinion  concerning  their  correctness  and  the  weight  of 
authority:  to  reconcile  them  all  would  be  simply  impossible. 
§  256.  Community  of  Interest.' —  The  two  leading  cases 
are  generally  known  as  ''  The  Case  of  the  Fisheries,"  ^  and 
*'  The  Case  of  the  Duties."^  The  former  was  a  bill  to  re- 
strain a  large  number  of  trespassers,  and  to  establish  the 
plaintiff's  right  as  against  them.  The  corporation  had  exer- 
cised and  claimed  an  exclusive  right  of  fishery  over  an  extent 
of  nine  miles  in  the  river  Ouse.  The  defendants  were  numer- 
ous lords  of  manors  and  owners  of  separate  tracts  of  land 
adjacent  to  the  river,  and  each  claimed,  in  opposition  to  the 
city,  an  individual  right  of  fishery  within  the  specified  limits 
by  virtue  of  his  separate  and  distinct  riparian  proprietor- 
ship. Lord  Hardwicke  sustained  the  bill,  although  the- 
plaintiff  had  not  established  his  exclusive  title  by  any  ac- 
tion at  law,  and  although  the  claims  of  the  various  defend- 
ants were  thus  wholly  distinct,  and  expressly  placed  his  de- 
cision upon  the  equitable  jurisdiction  to  prevent  a  multiplic- 
ity of  suits,  since  otherwise  the  corporation  would  be 
obliged  to  bring  endless  actions  at  law  against  the  indi- 
vidual trespassers.  The  second  case  was  brought  to  estab- 
lish the  right  of  the  city  of  London  to  a  duty  payable  by 
all  merchants  importing  a  certain  article  of  merchandise. 
It  has  ordinarily  been  quoted  and  treated  as  though  it  was 
a  bill  filed  by  the  city  against  a  number  of  individual  im- 

1  Mayor  of  York  v.  PiIkin<,'ton,  1  Atk.  282. 

2  City  of  Ijondon  v.  Perkins,  3  Brown  Pari.  C,  Tonilins's  ed.,  G02. 

(a)  This   paragraph   of  the  text   is        Pac.  R.  Co.,  117   Fed.  544,  a  8uit  off 
cited    in    United    States    v.    Soutlicrn        the  "  fourtli  class." 


393  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §    256 

porters  separately  engaged  in  the  trade,  for  the  purpose 
of  establishing  and  enforcing  the  city's  common  right  to 
the  duty  or  tax  in  question.  An  examination  of  the  record 
shows  that  this  is  not  an  accurate  account  of  the  proceed- 
ing; but  still  the  case  has  generally  been  regarded  as  an 
important  authority  in  support  of  the  equity  jurisdiction 
under  the  circumstances  described,  and  such  seems  to  have 
been  the  view  taken  of  it  by  Lord  Hardwicke  in  deciding 
the  Fisheries  Case.  There  are  other  English  decisions  to 
the  same  effect,  depending  upon  strictly  analogous  facts^ 
and  involving  the  same  doctrine,  which  are  referred  to  in 
the  foot-note.^    There  is  an  opinion  of  Lord  Eedesdale  in 

3  Lord  Tenham  v.  Herbert,  2  Atk.  483,  per  Lord  Hardwicke  (see  the  pas- 
sage from  his  opinion  quoted  ante,  in  note  to  §  247)  ;  How  v.  Tenants  of 
Bromsgrove,  1  Vern.  22,  a  suit  by  the  lord  of  a  manor  to  establish  a  right 
of  free  warren  against  the  tenants  of  his  manor;  Ewelme  Hospital  v.  Corp'n 
of  Andover,  1  Vern.  266,  a  suit  to  establish  the  right  to  hold  a  fair  at  a  par- 
ticular place,  and  to  have  certain  profits  and  dues  from  persons  trading  at 
Buch  fair;  Cowper  v.  Clerk,  3  P.  Wms.  155,  157,  a  bill  filed  by  a  single  copy- 
holder against  the  lord  of  the  manor,  to  be  relieved  from  an  excessive  fine. 
Lord  Chancellor  King  held  that  a  bill  by  a  single  copy-holder  could  not  be 
sustained,  because  the  defense  of  an  excessive  fine  would  be  admitted  in  an 
action  at  law  brought  against  him  by  the  lord.  But  the  chancellor  added 
that  a  bill  would  lie  by  several  copy-liolders  to  he  relieved  from  a  general  fine, 
on  the  ground  of  its  being  excessive,  in  order  to  prevent  a  multiplicity  of 
suits.  This  case,  in  my  opinion,  is  extremely  important  in  the  extent  to  which 
it  carries  the  operation  of  the  doctrine.  In  Weale  v.  West  Middlesex  Water 
Co.,  1  Jacob  &  W.  358,  369,  there  is  a  very  important  opinion  of  Lord  Chan- 
cellor Eldon  concerning  the  operation  of  the  doctrine  in  these  classes  of  cases. 
The  defendant  was  required  by  its  charter  to  furnish  water  to  the  in- 
habitants of  a  specified  district  at  reasonable  rates.  The  defendant  had 
raised  its  rates,  and  the  plaintiff,  who  had  been  a  customer,  filed  a  bill  to 
compel  the  company  to  keep  on  furnishing  water  at  the  old  rates,  and  to 
restrain  it  from  cutting  off  the  water  supply,  etc.  Lord  Eldon  said  (p.  3G9)  : 
In  Mayor  of  York  v.  Pilkington,  1  Atk.  282,  the  plaintiff  had  an  exclusive 
right  of  fishery  in  a  certain  river;  many  persons  claimed  that  they  had  a 
right;  and  the  corporation  sued  to  establish  its  own  exclusive  right;  and  it 
was  held  that  the  bill  was  proper,  because  if  the  corporation  showed  itself 
to  have  an  exclusive  right,  the  rights  of  no  other  individual  persons  could 
stand.  "  If  any  person  has  a  common  right  against  a  great  many  of  the 
king's  subjects,  inasmuch  as  he  cannot  contend  with  all  the  king's  subjects, 
a  court  of  equity  will  permit  him  to  file  a  bill  against  some  of  them,  taking 
eare  to  bring  so  many  persons  before  the  court  that  their  interests  shall  be 
such    as   lead   to   a   fair    and   honest   support   of   the   public    interests;    and 


'§    23G  EQUITY   JURISPRUDENCE.  394 

tlie  case  of  Whaley  v.  Dawson,  wliich  has  sometimes  been 
quoted  as  though  it  were  intended  to  furnish  the  true  rule 
concerning  the  nature  of  the  common  interests  and  common 
relations  which  must  subsist  among  the  individual  members 
of  the  numerous  body  of  persons  in  the  two  classes  of  cases 

when  a  decree  has  been  obtained,  then  the  court  will  carry  the  benefit  of  it 
into  execution  against  other  individuals,  who  were  not  parties,  .  .  .  Tliis 
would  be  more  like  that  case  if  it  were  the  direct  converse  of  what  it  is; 
because  it  is  impossible  in  the  nature  of  the  thing  that  Weale  (the  plaintifT) 
can  maintain  a  suit  on  behalf  of  himself  and  other  inhabitants  of  the  dis- 
trict; he  can  only  come  into  court  on  the  footing  of  his  own  independent 
right."  See  also  Bouverie  v.  Prentice,  1  Brown  Ch.  200;  and  Ward  v.  Duke 
of  Northumberland,  2  Anstr,  409;  Arthington  v.  Fawkes,  2  Vern.  350.  The 
doctrine  was  applied  under  analogous  circumstances  in  the  very  recent  cases 
of  Sheffield  Water  Works  v,  Yeomans,  L.  R.  2  Ch.  8,  11,  and  Phillips  v. 
Hudson,  L.  R.  2  Ch.  243,  240.  The  first  of  these  cases  is  a  very  strong  one. 
A  reservoir  of  the  water  company  had  burst,  and  damaged  a  large  number 
of  persons.  Under  a  special  statute,  commissioners  were  appointed  to  ex- 
amine the  claims  of  all  these  persons,  and  to  give  a  certificate  to  each  one 
whose  claim  was  satisfactorily  proved.  Each  certificate  would  be  prima  facie 
a  legal  demand  against  the  company  for  the  amount  of  damage  certified  in 
it;  but  to  enforce  such  certificate,  each  holder  must  bring  an  action  at  law. 
The  commissioners  issued  a  large  number  of  certificates,  and  among  them 
a  certain  class,  fifteen  himdred  in  number,  which  the  company  claimed  to 
be  illegal.  To  avoid  the  multiplicity  of  actions  against  itself  on  these  certifi- 
cates, the  company  brought  this  suit  in  equity  against  certain  of  the  holders 
sued  on  behalf  of  all  the  others,  praying  to  have  the  certificates  adjudged 
invalid,  and  canceled.  Here  was  no  community  of  right  or  of  interest  in 
■the  subject-matter  among  these  fifteen  hundred  certificate  holders.  In  the 
form  in  which  their  demands  existed,  they  did  not  all  arise  from  the  one 
wrongful  act  of  the  water  company.  Each  holder's  demand  and  separate 
right  arose  solely  from  the  dealings  of  the  commissioners  with  him  indi- 
vidually. The  only  community  of  interest  among  them  was  in  the  question  of 
law  at  issue  upon  which  all  their  rights  depended,  and  in  the  same  remedy  to 
which  each  might  be  entitled.  The  suit  was  sustained  on  demurrer  first  by 
Kindcrsly,  V.  C,  and  on  appeal  by  Chelmsford,  L.  C.  The  latter  said: 
"  Strictly  speaking,  this  is  not  a  bill  of  peace,  as  the  rights  of  the  claimants 
«nder  the  alleged  certificates  are  not  identical;  but  it  appears  to  me  to  be 
witliin  the  principle  of  bills  of  this  description.  The  riglits  of  the  numerous 
claimants  (certificate  holders)  all  depend  upon  the  same  question.  .  .  . 
It  Bocms  to  me  to  be  a  very  fit  case,  by  analogy,  at  least,  to  a  bill  of  peace, 
for  a  court  of  equity  to  interpose  and  prevent  unnecessary  litigation,"'  etc, 
Tliis  case  has  a  strong  resemblance  in  its  circumstances,  object,  and  prin- 
ciple to  the  celebrated  suit  growing  out  of  the  Schuyler  fraud,  described  under 
a  BubHfqucnt  paragraph.  It  certainly  cannot  be  reconciled  with  the  theory, 
maintained  by  some  of  the  American  courts,  that  there  must  be  a  common 
intercut  in  the  subject-matter,  or  a  common  title  among  the  numerous  body 


395  TO   PEEVENT    A    MULTIPLICITY    OF    SUITS.  §    256 

now  under  consideration."*  It  is  very  evident,  however,  that 
Lord  Redesdale  is  not  alluding  to,  nor  even  contemplating, 
in  this  decision,  any  kind  of  case  in  which  equity  assumes 
jurisdiction  to  prevent  a  multiplicity  of  suits;  he  is  merely 
discussing  the  familiar  objection  of  multifariousness,  where 
the  plaintiff  has  united  two  entirely  separate  subject-mat- 
ters and  defendants  in  the  suit  over  which  equity  had  an 
undoubted  and  exclusive  jurisdiction.  The  other  English 
decisions  very  clearly  do  not  require  any  privity  between 
the  members  of  the  numerous  body,  nor  any  common  ele- 

of  claimants,  in  order  that  a  court  of  equity  may  interfere  by  such  a  suit. 
In  Phillips  V.  Hudson,  L.  R.  2  Ch.  243,  246,  Lord  Chancellor  Chelmsford 
■decided  that  a  suit  will  lie  by  one  copyholder  suing  on  behalf  of  himself 
and  the  others,  against  the  lord  of  a  manor,  to  establish  their  rights  of 
common  in  the  manor;  but  such  a  suit  cannot  be  maintained  by  a  single 
copyholder  suing  alone.a  See  the  very  recent  and  instructive  case  of  Board 
of  Supervisors  v.  Deyoe,  77  N.  Y.  219,  225.b 

4  Whaley  v.  Dawson,  2  Schoales  &  L.  367,  370.  This  was  a  suit  praying 
partition  of  certain  lands  against  the  defendant  D.,  and  also  alleging  that  by 
fraud  the  defendant  C.  had  obtained  from  the  plaintiff  a  lease  of  a  certain 
part  of  said  land,  and  praying,  as  against  the  defendant  C,  that  such  lease 
might  be  set  aside.  This  bill  was  demurred  to  on  the  ground  of  multifarious- 
ness, and  the  demurrer  was  sustained.  Lord  Redesdale  said  (p.  370)  :  "In 
the  cases  where  demurrers  on  the  ground  that  plaintiff  demanded  by  his 
bill  matters  of  distinct  natures  against  several  defendants  not  connected  in 
interest  have  been  overruled,  there  has  been  a  general  right  in  the  plaintiff 
covering  the  whole  case,  although  the  rights  of  the  defendant  may  have  l)een 
distinct.  But  I  take  it  that  where  the  subjects  of  the  suit  are  in  themselves 
perfectly  distinct,  there  is  a  common  ground  of  demurrer."  Even  if  this 
opinion  can  be  regarded  as  having  any  reference  to  the  cases  under  con- 
sideration,  in  which  a  court  of  equity  may  exercise  jurisdiction  in  order  to 
prevent  a  multiplicity  of  suits,  it  very  plainly  does  not  place  any  practical 
limit  to  the  operation  of  the  doctrine;  it  does  not  in  the  least  ascertain  and 
fix  the  common  nature  of  the  interests  or  relations  which  must  subsist  among 
the  body  of  persons,  or  between  them  individually  and  their  single  adversary. 
See  also  Bouverie  v.  Prentice,  1  Brown  Ch.  200;  Ward  v.  Duke  of  Northum- 
berland, 2  Anstr.  409. 

(a)  See    also    the    similar    case    of  defendants,   to   determine   and   define 

Smith  V.  Brownlow,  L.  R.  9  Eq.  241.  conflicting  rights  to  or  claims  upon 

(l»)  A  bill  in  the  nature  of  a  bill  of  the  waters  of  the  same  stream ;  Craw- 
peace  may  be  brought  by  a  single  fcrd  Co.  v.  Hathaway,  (Nebr.)  93 
plaintiff,  claiming  rights  in  the  N.  W.  781,  796.  For  other  analogous 
waters  of  a  stream  against  numerous  cases  see  post,  §  261,  note. 


§    257  EQUITY   JURISPRUDENCE.  396 

ment  or  feature  inhering  in  the  very  nature  of  their  indi- 
vidual interests  as  between  themselves,''  *^ 

§  257.  Distinct  Proprietors  Injured  by  One  Wrong." —  There 
is  another  important  group  of  cases,  presenting  on  their 
face  a  very  different  condition  of  facts,  which  illustrate  the 
question  as  to  the  community  of  interests  which  must  sub- 
sist among  the  individuals  of  a  numerous  body  of  persons  in 
opposition  to  a  single  party,  in  order  that  a  court  of  equity 
may   take  jurisdiction,    and   grant  them  relief   upon   the 

5  Tliere  is  a  marked  distinction  between  the  case  of  Weale  v.  West  Middle- 
sex Water  Co.,  1  Jacob  &,  W.  358,  369,  and  the  Fisheries  Case  and  others 
quoted  in  the  preceding  notes.  There  was  no  common  right  of  any  kind  among 
the  water  consumers  of  the  district  and  the  company.  It  is  true,  the  com- 
pany was  bound  by  charter  to  supply  all  who  wished  the  water  and  paid  the 
rates;  but  the  immediate  basis  of  the  supply  in  each  individual  case,  and  the 
only  legal  relation  between  each  consumer  and  the  company,  was  a  distinct, 
separate,  voluntary  contract  made  between  such  consumer  and  the  company. 
Each  consumer  stood  upon  his  own  distinct  contract  as  the  single  source  of 
his  right.  There  was  no  sort  of  community  of  interest  among  the  consmnera 
of  the  district;  their  rights  were  not  only  separate,  but  did  not  arise  from 
the  same  legal  cause,  or  event,  or  transaction;  nor  did  they  depend  upon 
the  same  questions  of  law  or  of  fact.  Very  plainly,  therefore,  they  were  not 
in  such  a  position  that  they  could  all  join  as  co-plaintiflfs  in  a  suit  against 
the  company;  nor  could  Weale  sue  on  behalf  of  the  others. 

(c)  The    recent    case    of    Duke    of  benefit  of  all   persons  so  interested," 

Bedford   v.    Ellis,    [1901]    App.    Cas.  simply    extended    to    all    courts    the 

(H.  of  L. )    1,  affirming  Ellis  v.  Duke  practice    of    the    court    of    chancery, 

of  Bedford,    [1899]    1   Ch.   494,   is  of  which  in  this  respect  "remains  very 

importance   as   defining   the   right   of  much  as  it  was  a  hundred  years  ago." 

one   person   to   sue   as   representative  The  rule  was  not  confined  to  persons 

of   a    class.      There,    several    persons  who   have    or   claim    some    beneficial' 

sued  on  behalf  of  all   "  growers  "  of  proprietory  right  which  they  are  as- 

fruit,    etc.,     to    enforce    preferential  serting   or   defending.      To   justify   a 

rights  which  they  claimed  under  stat-  person  suing  in  a  representative  ca- 

utes,    to    stands    in    Covent    Garden  pacity   it    is   enough    that   he    has    a 

Market,     seeking     a     declaration     of  common  interest  with  those  whom  he 

their      rights,      and      an      injunction  claims   to  represent.     Dicta  in  Tcm- 

against   their    infringement.      It    was  plcton  v.  Russell,  [1893]   1  Q.  B.  435, 

declared   (pp.  8,  10)   that  Order  XVI,  were  overruled. 

Rule  9,  to  the  effect  that  "  wher*^  (a)  This  section  is  cited  in  Wash- 
there  are  numerous  persons  having  ington  Co.  v.  Williams,  111  F(m1.  801, 
the  same  interest  in  one  cause  or  815,  dissenting  opinion  of  Sanborn, 
matter,  one  or  more  of  such  persons  Cir.  J. ;  Osborne  v.  Wisconsin  Cent- 
may  sue  or  be  sued  ...  in  such  ral  11.  Co.,  43  Fed.  8'.i4,  by  Harlan,  J.. 
cau.se  or  matter  on  behalf  or  for  the 


397  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    257 

ground  of  preventing  a  multiplicity  of  suits.  These  are  the 
-ciises  in  which  a  number  of  individual  proprietors  of  sepa- 
rate and  distinct  parcels  of  land  have  all  been  interfered 
with  and  injured  in  the  same  general  manner,  with  respect 
to  their  particular  lands,  by  a  private  nuisance,  so  that  they 
all  have  a  similar  claim  for  legal  redress  against  the  author 
of  the  nuisances.  As,  for  example,  where  a  number  of  dif- 
ferent owners  have  separate  mills  and  water-powers  along 
the  banks  of  a  stream,  and  some  party  wrongfully  erects  a 
dam  or  diverts  the  water,  and  by  this  unlawful  act  the  prop- 
erty rights  of  each  owner  are  injuriously  affected  in  the 
same  general  manner,  although  in  unequal  amounts.  The 
instances  are  numerous  in  which  courts  of  equity  have  inter- 
fered, under  these  and  analogous  circumstances,  avowedly 
on  the  ground  of  preventing  a  multiplicity  of  suits,  and  have 
given  complete  relief  to  all  the  injured  proprietors  by  a  sin- 
gle decree.^  ^    The  cases  of  this  group  are  exceedingly  im- 

1  Cadigan  v.  Brown,  120  Mass.  493,  495 ;  Ballou  v.  Inhabitants  of  Hopkin- 
ton,  4  Gray,  324,  328;  Murray  v.  Hay,  1  Barb.  Ch.  59,  43  Am.  Dec.  773;  Reid 
V.  Gifford,  Hopk.  Ch.  416,  419,  420;  but  see  Marselis  v.  Morris  Canal  Co., 
1  N.  J.  Eq.  31.  In  Cadigan  v.  Brown,  120  Mass.  493,  495,  the  plaintiffs  were 
individual  owners  of  separate  lots  abutting  on  a  passage-way,  each  holding 
under  a  distinct  title  from  a  different  grantor.  Defendant  began  an  erection 
which  would  permanently  block  up  the  passage  and  interfere  with  each  plain- 
tiff's right  of  way,  and  was  therefore  a  nuisance.  The  plaintiffs  brought  this 
suit  to  restrain  the  further  erection,  and  to  remove  the  obstruction.  Held, 
that  the  suit  should  be  sustained,  and  that  all  the  plaintiffs  could  join  in  one 
suit  in  equity  on  the  ground  of  preventing  a  multiplicity  of  suits,  since  at  law 
each  owner  must  bring  a  separate  action.    "  The  plaintiffs,  although  they  hold 

(b)  In  the  following  cases  separate  Rep.  643,  58  N.  E.  142,  51  L.  R.  A. 

riparian  owners  properly  joined  in  a  687.     In  the  last  case  the  court  says: 

suit  to  restrain  the  diversion  or  pol-  "  They  all  have  a  common  grievance 

lution    of    the    stream.      Barham    v.  against  the  defendant  for  an  injury 

Hostetter,   67   Cal.   272,   7   Pac.   089;  of    the    same    kind,    inflicted    at    the 

Churchill   v.   Lauer,   84   Cal.  233,  24  same    time    and    by    the    same    acts. 

Pac.  107 ;   Foreman  v.  Boyle,  88  Cal.  The  common  injury,  although  differ- 

290,   26   Pac.   94 ;   Middleton   v.   Flat  ing  in  degree  as  to  each  owner,  makea 

R.   B.   Co.,   27   Mich,   533 ;    Emery   v.  a   common   interest,   and   warrants   a 

Erskine,    66    Barb.    9;    Lonsdale    Co.  common  remedy."     See  the  well-con- 

V.  Woonsocket,  21  R.  I.  498,  44  Atl.  sidered  case  of  State  v.  Sunapee  Dam 

929,  and  cases  cited;  Strobel  v.  Kerr  Co.    (N.  H.),  55  Atl.  899,  where  the 

Salt  Co.,  164  N.  Y.  303,  79  Am.  St.  court  was  evenly  divided  on  the  quea- 


§    257  EQUITY   JURISPRUDENCE.  39S 

portant  in  tlieir  bearing  upon  the  question  under  examina- 
tion as  to  the  true  meaning  and  extent  of  the  doctrine  con- 
cerning the  prevention  of  a  multiplicity  of  suits.  At  law, 
the  only  remedy  was  an  action  for  damages  by  each  owner 
against  the  author  of  the  nuisance  or  trespass.  It  cannot  be 
pretended  that  there  existed  among  the  various  owners  with 
respect  to  each  other,  or  as  between  their  entire  body  and 
the  defendant,  any  common  bond  or  interest  to  which  the 
term  *'  privity  '*  can  be  applied,  or  which  bore  the  slightest 
resemblance  to  any  species  of  privity.  In  fact,  there  did  not 
exist  among  them  as  individual  owners,  or  between  them  as 
a  body  and  the  defendant,  any  distinct  legal  relation  what- 
ever which  the  law  recognizes.  The  only  common  bond 
among  them  as  individuals,  or  between  them  as  a  body  and 
the  defendant,  consisted  in  the  fact  that  they  each  and  all 

their  right  under  separate  titles,  have  a  common  interest  in  the  subject  of  the 
hill.  They  are  affected  in  the  same  way  by  the  acts  of  the  defendant,  and 
seek  the  same  remedy  against  him.  The  rights  of  all  parties  can  be  ad- 
justed in  one  decree,  and  a  multiplicity  of  suits  is  prevented";  citing  Ballon 
V.  Ilopkinton,  and  Murray  v.  Hay.  In  Ballou  v.  Inhabitants  of  Hopkinton, 
4  Gray,  324,  328,  the  plaintiffs  were  individual  owners  of  separate  mills  on 
the  banks  of  a  stream,  and  each  drew  a  supply  of  water  for  his  own  mill 
from  a  dam  higher  up  on  the  stream,  which  had  been  built  by  all  of  these 
proprietors.  The  defendants  had  begun  to  draw  water  from  this  dam,  not 
removing  or  in  any  way  interfering  with  the  structure  itself,  but  simply  divert- 
ing the  water,  so  that  the  supply  for  each  mill  was  lessened,  and  might  b& 
rendered  insufficient.  It  was  held  that  the  plaintiffs  could  join  in  one  equity 
Buit,  and  restrain  the  defendants  by  injunction,  in  order  to  prevent  a  mul- 
tiplicity of  suits.  In  Murray  v.  Hay,  1  Barb.  Ch.  59,  43  Am.  Dec.  773,  the 
plaintiffs  were  in  like  manner  owners  of  separate  dwellings,  which  were  all 
injured  by  a  single  nuisance,  of  which  the  defendant  was  the  author.     It  was 

tion   of   jurisdiction    to   award    dam-  Co.,    20    Nev.    429,    23    Pac.    840)  ; 

ages   in   lieu   of   injunction.      Owners  Sullivan  v.  Phillips,  110  Ind.  320,  11 

of  distinct  lots  abutting  upon  a  street  N.  E.  300  (drain  so  constructed  as  to 

joined   in  suits  to   restrain   common  flood   plaintiff's   lands).     Other  nui- 

nuisances,  in  Geurkink  v.  Petaluma,  sauces   affecting  plaintiffs   similarly: 

112    Cal.    306,    44    Pac.   570    (water-  flooding  plaintiff's  lands  by  deepening 

course    so    diverted    as    to    interfere  n   certain   ditch.   Foot  v.   Bronson,   4 

with      plaintiffs'     easement     in     the  Lans.    47;    establishing    a    cemetery, 

etrcet)  ;    Younkin   v.   Milwaukee   Co.,  Jung  v.  Nerez,  71  Tex.  390,  9  S.  W. 

112  Wis.   15,  87  N.  W.  801    (railway  344;     erecting     a     wooden     building 

unlawfully  constructed  in  street;  but  v.itliin    the    iire    limits    of    a    town, 

Bce  contra,  Fogg  v.  Nevada  C.  V.  R.  First  Nat.   Bank  v.   Sarlls,   120   Jnd. 


399  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    257 

suffered  the  same  kind  of  wrong  to  their  separate  proper- 
ties, arising  at  the  same  time  and  from  the  same  tortious  act 
of  the  defendant,  and  in  the  fact  that  the  legal  causes  of 
action  and  remedial  rights  of  each  and  all  were  the  same, 
depending  upon  similar  matters  of  fact  and  the  same  rules 
of  law.  They  were  in  exactly  the  same  position  as  that  of 
any  body  of  men  who  have  all  separately  and  individually 
suffered  the  same  kind  of  injury  to  their  persons  or  their 
properties  by  one  trespass  or  other  wrongful  act;  only  in 
their  cases  the  subject-matter  which  directly  received  the 
injury  —  the  parcels  of  land  —  and  the  wrong  itself  —  the 
nuisance  or  continued  trespass  —  were  of  such  a  nature  as 
brought  them  within  the  possible  jurisdiction  of  equity, 
since  a  court  of  equity  could  never  take  jurisdiction  in  a  case 
of  mere  wrong  to  the  persons  or  the  reputation  of  the  in- 
held  that  they  could  all  unite  and  obtain  full  relief  of  injunction  and  re- 
moval by  one  decree;  citing  Kensington  v.  White,  3  Price,  164;  Mills  v. 
Campbell,  2  Younge  &  C.  389;  Reid  v.  Gifford,  Hopk.  Ch.  416;  Trustees  of 
Watertown  v.  Cowen,  4  Paige,  510,  27  Am.  Dec.  80.  In  Reid  v.  Gifford, 
Hopk.  Ch.  416,  the  plaintiffs  were  in  the  same  manner  owners  of  separate 
parcels  of  land  on  a  mill  stream,  and  of  separate  water  rights  in  such  stream. 
Defendant  owned  another  mill-sit€  on  the  same  stream.  He  had  cut  a  ditch 
or  canal,  by  which  he  diverted  water  from  the  stream,  and  thereby  injured 
all  the  plaintiffs  in  the  same  manner,  but  in  varying  amounts.  Plaintiffs 
united  in  this  suit  to  obtain  an  injunction,  and  to  abate  the  nuisance.  Their 
suit  was  sustained.  It  was  expressly  held  that  they  all  had  such  a  community 
of  interest  in  the  subject-matter  of  the  suit  that  they  could  join  in  the  bill. 
It  was  further  held  that  since  they  had  long  been  seised  in  fee  of  their  re- 
spective premises,  and  in  undisturbed  possession  thereof,  no  verdict  or  judg- 
ment at  law  was  necessary  to  establish  their  rights,  and  as  a  prerequisite  to 
their  invoking  the  aid  of  equity. 

201,  28  Am.  St.  Rep.   185,  28  N.  E.  Jersey  cases  and  concluding  that  "  the 

434,   13   L.   R.   A.   401    ("their   com-  meaning  of  the  rule,  so  far  as  it  per- 

mon  danger  and  common  interest  in  mits  several  to  join  as  complainants, 

the  relief  sought  authorizes  them  to  is  that  all  the  grievances  complained 

join  in  the  action")  ;  offensive  manu-  of  shall   affect  all  the  complainants, 

facture,   Blunt  v.  Hay,  4  Sandf.  Ch.  not  precisely  at  the  same  instant,  and 

(N.  Y.)    362;    WTiipple   v.   Guile,   22  in  the  same  degree,  but  in  the  same 

R.  I.  576,  48  Atl.  935   (nuisance  from  general    period    of    time,    and    in    a 

noise),  reviewing  many  cases;  main-  similar  way,  so  that  the  same  relief 

taining     lunatic     asylum     carelessly  may  be  had  in  the  single  suit,  whether 

Rowbotham  v.   Jones,   47   N.   J.   Eq.  there  be  one,  two,  or  a  dozen  plain- 

337,  20  Atl.  731,  reviewing  the  New  tiffs." 


§    257  EQUITY   JURISPRUDENCE.  400 

jured  parties.  And  yet  in  each  decision  it  was  expressly 
held  that  there  was  a  sufficient  community  of  interest  in  the 
subject-matter  of  the  suit  to  enable  a  court  of  equity  to  exer- 
cise its  jurisdiction  on  behalf  of  the  united  plaintiffs.  The 
conclusion,  therefore,  seems  to  me  irresistible,  that  this 
group  of  decisions  cannot  be  reconciled  with  that  theory  of 
the  jurisdiction  which  requires,  in  cases  of  the  third  and 
fourth  classes,  a  privity  of  interest  or  common  legal  rela- 
tion existing  among  all  the  individuals  of  the  body  of  per- 
sons who  assert  their  separate  claims  against  a  single  ad- 
versary party,  in  order  that  a  court  of  equity  may  interfere 
on  their  united  behalf  against  him,  or  on  his  behalf  against 
them.2  <= 

2  It  may,  perhaps,  be  said,  in  explanation  of  the  judicial  action  in  this 
group  of  cases,  that  on  account  of  the  continuous  nature  of  the  wrong  —  the 
nuisance  or  trespass — eacli  separate  o\\Tier,  in  addition  to  his  actions  at 
law  for  damages,  would  be  entitled  to  maintain  a  separate  suit  in  equity  on 
his  own  behalf,  and  thereby  restrain  the  further  wrong.  It  would  be  enough 
to  answer  that  in  no  instance  was  the  decision  put  upon  any  such  groimd. 
In  every  instance  the  court  rested  its  decree  upon  the  broad  ground  that  the 
legal  remedies  of  the  individual  plaintiffs  were  imperfect,  and  that  as  there 
was  a  sufficient  community  of  interest  in  the  subject-matter  among  tliem, 
they  could  properly  unite  in  the  single  equitable  proceeding,  in  order  to  pre- 
vent a  multiplicity  of  suits.  But  even  admitting  the  facts  above  stated  to 
their  fullest  extent,  they  do  not  in  the  slightest  degree  alter  or  alTect  the  con- 

(c)  This  seems  an  appropriate  should  suffice  to  show  that  a  state- 
place  to  notice  a  criticism  urged  with  ment  of  the  accepted  rules  as  to  the 
much  earnestness  against  tlie  au-  joinder  of  parties  is  an  essential  and 
thor's  treatment  of  his  "  Third  and  vital  part  of  the  autlior's  arguments. 
Fourth  Classes,"  viz.,  that  he  has  It  is  conceded  on  all  hands  that  the 
confused  "  distinct  things  in  his  view  numerousness  of  parties  is,  under 
of  this  subject,  to  wit:  joinder  of  certain  circumstances,  viz.,  the  exist- 
parties,  and  avoidance  of  multiplicity  ence  of  a  "privity  of  interest*' 
of  suits.  It  has  been  found  that  among  them  —  an  independent  ground 
many  of  the  cases  he  pressed  into  of  equity  jurisdiction.  It  has  been 
service  to  support  his  assertion  are  established  by  cases  innumerable 
on  tlie  subject  of  joinder,  where  con-  that  tliis  "privity  of  interest"  among 
fosscdly  tliere  could  be  no  doubt  that  numerous  parties  is  not,  as  was  once 
the  matter  waa  of  equity  cognizance,"  supposed,  a  requisite  to  their  joinder 
etc.  Tribctte  v.  Illinois  Central  R.  in  an  ordinary  suit  in  equity.  Why, 
R.  Co.,  70  Miss.  182,  12  South.  32,  tlicn,  make  it  a  requisite  to  the  juris- 
35  Am.  St.  Rep.  C42,  19  L.  R.  A.  BOO,  diction  based  on  numerousness  of 
1  Keener's  Cas.  Eq.  Jur.  148,  2  Ames  parties,  and  thus  apply  to  cases  with- 
Caa.  Eq.  Jur.  74.  It  would  seem  that  in  that  jurisdiction  a  rule  as  to  par- 
a  very  moderate  degree  of  rellection  ties    wiioliy    arbitrary    and   narrower 


401 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§    258 


§  258.'  Distinct  Proprietors  Relieved  from  Local  Assessments. 
—  I  pass  now  to  consider  another  and  even  more  interesting 
group  of  cases,  which  chiefly  belong,  with  one  or  two  excep- 

clusions  reached  in  the  text,  nor  furnish  any  different  explanation  of  the 
action  of  the  courts  in  exercising  their  jurisdiction.  Even  if  each  individual 
plaintiff  would  have  had  a  right  to  equitable  relief  as  well  as  to  the  legal  relief 
of  damages,  the  equitable  jurisdiction  to  prevent  a  multiplicity  of  suits  is 
never  made  to  rest  upon  the  particular  kind  or  extent  of  relief  which  an  indi- 
vidual party  might  otherwise  have  obtained  in  a  separate  suit.  It  always 
assumes  that  some  relief,  either  legal  or  equitable,  could  have  been  thus  ob- 
tained; and  the  only  question,  in  cases  of  the  third  and  fourth  classes,  is, 
whether  there  is  a  sufficient  common  bond  among  the  body  of  similarly  situ- 
ated persons  on  the  one  side  of  the  controversy  to  authorize  the  court  to 
interfere  and  give  complete  relief  to  them  or  against  them  all  in  one  pro- 
ceeding, and  thus  avoid  a  multiplicity  of  suits.d 


than  the  rule  as  to  joinder  of  par- 
ties in  other  suits?  It  is  not  the  re- 
lation of  privity  among  the  parties 
that  gives  rise  to  the  jurisdiction  of 
a  court  of  equity,  but  their  multi- 
tude, and  the  facilities  of  the  pro- 
cedure in  that  court  for  joining  them 
and  disposing  of  all  the  numerous 
legal  issues  in  a  single  equitable  is- 
sue. In  any  logical  view  of  the  sub- 
ject, the  measure  of  the  jurisdiction 
to  entertain  a  bill  of  peace  should  be 
as  broad  as  the  measure  of  the  court's 
ability,  in  accordance  with  its  settled 
rules,  to  join  the  numerous  parties  in 
a  single  suit.  Such  is  the  nature  of 
the  author's  argument,  as  the  editor 
understands  it;  and,  clearly,  a  most 
important  link  in  the  chain  is  the 
statement  and  proof  of  the  modern 
rules  as  to  joinder  of  parties,  based, 
ns  these  rules  are,  not  on  the  re- 
lationship of  the  parties  among  them- 
selves, but  on  their  community  of  in- 
terest in  the  questions  involved  in 
the  suit.  Tliis  identity  between  the 
rules  as  to  joinder  in  all  other  equity 
actions,  and  the  rules  as  to  joinder 
which,  as  the  author  shows,  guide 
the  exercise  of  the  jurisdiction  in  bills 
of  peace,  is  clearly  recognized  in  Le- 
high Valley  R.  R.  Co.  v.  McFarlan, 
31   N.   J.   Eq.    730,   759,    1   Keener's 

Vol.  1  —  26 


Cas.  Eq.  Jur.  133.  "  The  question 
[of  joinder]  has  generally  arisen  on 
demurrer  to  bills  in  causes  of  purely 
equitable  cognizance.  But  in  this  re- 
spect there  is  no  difference  between 
such  bills  and  bills  of  peace.  A  bill 
of  peace  which  shall  draw  within 
equitable  cognizance  causes  of  action 
which  are  purely  legal  in  their  char- 
acter, must  conform  to  the  rules  and 
principles  of  ordinary  equity  plead- 
ing, and,  in  addition  thereto,  must 
possess  another  element  arising  from 
the  number  of  the  parties  interested 
and  the  multitude  of  actual  or  threat- 
ened suits.  In  such  cases  there  must 
be  such  a  unity  of  interest  on  the 
one  side  or  the  other,  as  would  justify 
a  joinder  of  the  parties  in  causes  of 
purely  equitable  cognizance.  17  N.  Y. 
608,  Comstock,  J."  See  also  Williams 
V.  County  Court,  26  W.  Va.  488,  516, 
53  Am.  Rep.  94. 

(d)  This  sentence  of  the  note  la 
quoted  by  Parker,  C.  J.,  in  Mack  v. 
Latta,   (N.  Y.)   71  N.  E.  97. 

(a)  This  and  the  two  following  sec- 
tions are  cited  with  approval  in  Carl- 
ton V.  Newman,  77  Me.  408,  415,  1 
Atl.  194;  Allen  v.  Intendant,  etc.,  of 
La  Fayette,  89  Ala.  641,  8  South.  30, 
9  L.  R.  A.  497. 


§    259  EQUITY   JURISPBUDENCE.  402 

tions,  to  the  judicial  history  of  this  country,  and  in  which 
more  than  in  any  other  has  arisen  the  direct  conflict  of  judi- 
cial opinion  already  mentioned.  I  refer  to  cases  brought  by 
or  on  behalf  of  a  body  of  individual  tax-payers  or  owners 
of  distinct  tracts  of  lands  to  be  relieved  from  illegal  assess- 
ments upon  their  separate  properties,  made  by  municipal 
corporations  to  defray  the  expense  of  local  improvements ; 
or  from  general  taxes,  either  personal  or  made  liens  on 
property,  unlawfully  assessed  and  levied  by  counties,  towns, 
or  cities ;  or  to  set  aside,  annul,  and  be  relieved  from  some 
unlawful  public,  official,  and  corporate  act  of  a  county,  town 
or  city, —  by  means  of  which  a  public  debt  would  be  created, 
and  the  burden  of  individual  taxation  would  be  ultimately 
increased.  Those  instances  in  which  the  jurisdiction  has 
been  exercised  and  the  relief  granted  will  alone  be  consid- 
ered at  present;  those  in  which  it  has  been  denied  to  exist 
will  be  postponed  to  subsequent  paragraphs,  in  which  the 
general  limitations  upon  the  doctrine  are  examined.  I  shall 
take  up  first  in  order  the  cases  of  local  assessments,  and 
secondly,  those  of  general  taxes  and  of  official  acts  creating 
public  indebtedness  and  final  taxation. 

§  259.  Relief  from  Illegal  Taxes  and  Other  Public  Burdens 
in  General. —  There  are  numerous  decisions  to  be  found  in 
the  reports  of  several  states  of  equity  suits  brought  by  land- 
owners to  set  aside  illegal  assessments  or  taxes  laid  upon 
their  property,  in  which  one  court  after  another  has  re- 
peated the  formula  that  the  suit  would  be  sustained  and  the 
relief  granted  whenever  it  was  necessary  to  remove  a  cloud 
from  title,  or  to  prevent  a  multiplicity  of  suits.  In  none  of 
these  cases  is  any  attempt  made  to  determine  when  the  re- 
lief would  be  necessary  or  appropriate  for  the  purpose  of 
preventing  a  multiplicity  of  suits;  and  in  most,  if  not  all,  of 
thorn  the  relief  was  refused  and  the  suit  dismissed  expressly 
on  the  ground  that  it  did  not  come  within  the  equitable  juris- 
diction to  prevent  a  multiplicity  of  suits.  It  is  plain,  there- 
fore, that  these  decisions,  notwithstanding  the  general  for- 
mula which  they  all  announce,  do  not  a/Jirmatively  define 


403  TO   PREVENT   A   MULTIPLICITY   OF    SUITS.  §    260 

the  extent  of  the  jurisdiction ;  but  their  authority,  so  far  as 
it  goes,  is  opposed  to  the  exercise  of  the  jurisdiction,  under 
all  ordinary  circumstances,  in  the  class  of  cases  described.^ 
§  260.*  I  pass  to  a  line  of  cases  much  more  definite  and 
direct  in  their  bearing  upon  the  questions  under  discussion. 
Assessments  for  local  improvements  by  municipal  corpora- 
tions are  generally  made  a  lien  upon  the  lands  declared  to* 
be  benefited  thereby;  and  where  such  is  the  case,  the  in-^ 
stances  are  numerous  in  which  suits  in  equity  brought  by  a 
number  of  individual  owners  of  separate  lots,  or  by  one 
owner  suing  on  behalf  of  himself  and  all  the  others  similarly 
situated,  to  procure  the  enforcement  and  collection  of  the- 
assessment  to  be  enjoined,  and  the  assessment  itself  to  be^ 
set  aside  and  annulled  on  account  of  its  illegality,  have  been 
sustained  upon  the  avowed  ground  that  such  relief  granted 
in  a  single  proceeding  was  both  proper  and  necessary  in 
order  to  prevent  a  multiplicity  of  suits.  In  all  these  cases 
each  separate  land-owner  had,  of  course,  some  kind  of  legal 
remedy,  either  by  action  for  damages  against  the  officer  en- 
forcing the  unlawful  collection,  or  by  writ  of  certiorari  to- 
review  the  assessment  itself.  But  such  remedy  was  inade- 
quate when  compared  with  the  comprehensive  and  complete 

1  Guest  V.  Brooklyn,  69  N.  Y.  506,  512,  513;  Heywood  v.  Buffalo,  14  N.  Y, 
534,  541;  Mayor  of  Brooklyn  v.  Messerole,  26  Wend.  132,  140;  Ewing  /. 
St.  Louis,  5  Wall.  413,  418,  419;  Dows  v,  Chicago,  11  Wall.  108,  110,  111; 
Scribner  v.  Allen,  12  Minn.  148;  Minnesota  Oil  Co.  v.  Palmer,  20  Minn.  468; 
White  Sulphur  Springs  Co.  v.  Holley,  4  W.  Va.  597;  Bouton  v.  City  of 
Brooklyn,  15  Barb.  375,  387,  392;  Harkness  v.  Board  of  Public  Works,  1  McAr. 
121,  131-133.  In  each  of  these  cases  the  general  proposition  was  laid  down 
as  stated  in  the  text,  but  in  each  the  court  refused  to  exercise  jurisdiction 
and  to  give  any  equitable  relief,  on  the  ground  that  such  a  case  does  not 
come  within  the  operation  of  the  doctrine  concerning  a  multiplicity  of  suits. 
In  Guest  v,  Brooklyn,  69  N.  Y.  506,  512,  513,  it  was  further  held  that  the 
assessment,  being  divided  into  a  number  of  installments  payable  annually, 
did  not  bring  the  case  within  the  doctrine,  because  each  lot-owner  had  a  suffi- 
cient remedy  at  law,  and  a  decision  on  one  installment  would  settle  his  lia- 
bility as  to  all. 

(a)  This  section  is  cited  with  ap-       v.  City  of  Denver,   10  Colo.   113,   15 
proval  in  Dumars  v.  City  of  Denver       Pac.  825, 
(Colo,    App.),    65    Pac.    680;    Keese 


§    260  EQUITY   JUEISPRUDENCB.  404 

relief  furnished  by  the  single  decree  in  equity.^  **  The  juris- 
diction has  been  carried  much  further.  In  a  large  number 
of  the  states  the  rule  has  been  settled  in  well-considered  and 
often-repeated  adjudications  by  courts  of  the  highest  char- 
acter for  ability  and  learning,  that  a  suit  in  equity  will  be 
sustained  when  brought  by  any  number  of  tax-payers  joined 
as  co-plaintiffs,  or  by  one  tax-payer  suing  on  behalf  of  him- 
self and  all  others  similarly  situated,  or  sometimes  even  by 
a  single  tax-payer  suing  on  his  own  account,  to  enjoin  the 

1  Ireland  v.  City  of  Rochester,  51  Barb.  415,  435;  Scofield  v.  City  of 
Lansing,  17  INIich.  437;  City  of  Lafayette  v.  Fowler,  34  Ind.  140;  Kennedy 
V,  City  of  Troy,  14  Hun,  308,  312;  Clark  v.  Village  of  Dunkirk,  12  Hun, 
181,  187.  In  Ireland  v.  City  of  Rochester,  51  Barb.  415,  about  ninety  ownera 
■of  distinct  lots  on  a  certain  avenue  united  in  the  suit  to  restrain  the  col- 
lection of  an  illegal  and  void  assessment,  made  in  diflFerent  amounts  on  their 
lots  by  the  city  authorities,  in  a  proceeding  to  improve  the  avenue.  The  as- 
sessment was  held  void,  and  the  suit  was  sustained  on  the  express  ground  that 
a  multitude  of  suits  was  thereby  prevented.  Henry  R.  Selden,  Esq.,  who  was 
counsel  for  the  plaintiffs,  said  (p.  420):  "If  the  collection  had  been  pro- 
ceeded with,  more  than  eighty  suits  would  have  been  necessary  to  accomplish 
^\'hat  can  better  be  done  by  this  suit  alone.  Avoiding  a  multiplicity  of  suits 
is  good  ground  for  equity  jurisdiction."  The  argument  of  counsel  is  not  often 
cited  as  authority.  But  all  who  know  Mr.  Selden  will  agree  with  me  that 
no  member  of  the  bar  of  the  state  of  New  York  had  a  more  extensive  knowl- 
edge of  or  a  greater  familiarity  with  the  principles  of  equity  jurisprudence 
and  jurisdiction  than  he;  and  his  intellect  had  that  peculiar  integrity  which 
•would  not  permit  him  to  maintain  as  counsel  any  legal  position  which  he 
did  not  thoroughly  believe  as  a  lawyer.  I  esteem  his  opinion  as  a  very  strong 
■evidence  in  support  of  the  equitable  jurisdiction  in  cases  of  this  kind.  Sco- 
field V.  City  of  Lansing,  17  Mich.  437,  was  a  bill  filed  by  a  large  number  of 
owners  of  separate  lots  fronting  on  a  street,  to  enjoin  collection  of  an  illegal 
assessment,  which  was  declared  by  statute  to  be  a  lien  on  all  the  lauds  as- 

(b)  Enjoining     Municipal     Assess-  half,  and  for  his  own  purposes,  to  re- 

ments. —  The   conclusions   of   the   au-  strain   such   proceedings,   will   be   re- 

thor  with  respect  to  classes  third  and  mitted    to    his    remedy    at    law,    yet 

fourth  were  approved,  and  the  prin-  where  a  number  of  persons  are  sim- 

ciple  applied   to  the  enjoining  of  il-  ilarly  afTected,  and  the  rights  of  all 

logal    special    assessments,    in    Keese  may  be  adjusted  in  one  proceeding,  a 

V.   City  of  Denver,   10   Colo.   113,    15  court  of  equity  will  assume  jurisdic- 

Pac.  825,  and  in  Dumars  v.  City  of  tion,    notwithstanding    there    is    no 

Denver    (Colo.    App.),    65    Pac.    580.  cloud  to  remove,   and   the  ground  of 

In  the  latter  case  it  is  said:     "While  its  jurisdiction   is   the  prevention  of 

void   proceedings  cast  no  cloud  upon  a  multiplicity  of  suits.     [Citing  eev- 

title  to  real  estate,  and  a  single  in-  eral  cases,  and  Pom.  Eq.  Jur.,  §§260, 

dividual,  moving  only  in  hia  own  be-  273.]      The    complaint    in   this    case 


405  TO   PREVENT   A   MULTIPLICITY   OF   SUITS.  §    2G0 

enforcement  and  collection,  and  to  set  aside  and  annul,  any 
and  every  kind  of  tax  or  assessment  laid  by  county,  town, 
or  city  authorities,  either  for  general  or  special  purposes^ 
whether  it  be  entirely  personal  in  its  nature  and  liability, 
or  whether  it  be  made  a  lien  on  the  property  of  each  tax- 
payer, whenever  such  tax  is  illegal ;  and  in  like  manner  to 
set  aside  and  annul  any  and  every  illegal  public  ofQcial  ac- 
tion or  proceeding  of  county,  town,  or  city  authorities, 
whereby  a  debt  against  such  county,  town,  or  city  would  be 
unlawfully  created,  the  public  burden  upon  the  community 

eessed.  Pronouncing  the  assessment  void,  the  court  held  that  the  suit  could 
be  sustained  on  the  ground  that  the  questions  to  be  decided  were  common  to 
all  the  plaintiffs,  and  it  prevented  a  multiplicity  of  suits.  City  of  Lafayette 
V.  Fowler,  34  Ind.  140,  in  which  the  facts  were  similar,  was  decided  in  con- 
formity with  a  general  doctrine,  which,  as  we  shall  see,  is  settled  in  that 
state  with  reference  to  all  kinds  of  illegal  taxes,  assessments,  and  public  bur- 
dens. In  the  recent  cases  of  Kennedy  v.  City  of  Troy,  14  Hun,  308,  312,  and 
Clark  V.  Village  of  Dunkirk,  12  Hun,  181,  187,  upon  facts  similar  to  those 
in  the  Ireland  case,  the  supreme  court  of  New  York  held  that  a  suit  by  one 
lot-owner  suing  on  behalf  of  himself  and  all  others  in  the  same  situation,  to 
set  aside  an  illegal  assessment  which  was  made  a  lien  on  their  lands,  would 
be  sustained  on  the  express  ground  that  it  came  within  the  familiar  juris- 
diction of  equity  to  grant  relief  for  the  purpose  of  preventing  a  multiplicity 
of  suits.  These  decisions  are  the  more  emphatic  because  the  courts  of  New 
York  had  previously  held  in  many  cases  that  the  jurisdiction  did  not  extend 
to  suits  brought  by  one  or  by  many  tax-payers  to  be  relieved  from  ordinary, 
general,  and  personal  taxes  on  the  ground  of  their  illegality.  It  is  very  evi- 
dent that  the  proposition  stated  in  the  text  and  the  decisions  cited  in  this  note 
would  be  followed,  and  the  owners  of  lots  would  be  relieved  from  illegal  mu- 
nicipal local  assessments  in  all  those  states  where  the  courts  have  exercised 
a  like  jurisdiction  to  relieve  taxpayers  from  all  kinds  of  taxes  and  public 
burdens  which  are  found  to  be  illegal. 

shows  that  a  number  of  persons  are  mous,  the  case  is  one  peculiarly  of 

aflFected  by  the  same  assessment,  and  equitable  cognizance.     See  also  Pom. 

that  to  determine  their  rights  at  law  Eq.  Jur.,  §  269."     In  Michael  v.  City 

would  require  as  many  suits  as  there  of  St.  Louis,  112  Mo.  610,  20  S.  W. 

are   individuals;    and   it   also   shows  666,   the  text  was   approved,   but  it 

that,    while    they    have    no    common  was  held  by  the  majority  of  the  court 

ownership    in   the    property   aflfected  that  the  complaint  did  not  set  out 

by  the  assessment,  they  have  a  com-  such  facts  that  it  could  be  seen  from 

munity  of   interest  in  the  questions  the   face   of   the   pleadings   that   the 

of  law  and  fact  involved  in  the  con-  questions  of  law  to  be  decided  were 

troversy;  and  upon  authority  so  over-  the  same  aa  to  all  the  plaintiflFs. 
whelming  as  to  be  practically  unani- 


§    260  EQUITY    JURISPRUDENCE.  406 

would  be  unlawfully  enhanced,  and  the  amount  of  future 
taxation  would  be  unlawfully  increased;  as,  for  example, 
unlawful  proceedings  of  the  municipal  authorities  to  ad- 
vance money  or  to  loan  the  public  credit  to  a  railroad,  or  to 
bond  the  municipality  in  aid  of  a  railroad,  or  to  offer  and 
pay  bounties  to  soldiers,  or  to  erect  public  buildings,  and 
numerous  other  analogous  proceedings  which  would  neces- 
sarily result  in  a  public  debt  and  in  taxation  for  its  pay- 
ment.*^ In  the  face  of  every  sort  of  objection  urged  against 
a  judicial  interference  with  the  governmental  and  executive 
function  of  taxation,  these  courts  have  uniformly  held  that 
the  legal  remedy  of  the  individual  tax-payer  against  an  ille- 
gal tax,  either  by  action  for  damages,  or  perhaps  by  cer- 
tiorari, was  wholly  inadequate ;  and  that  to  restrict  him  to 
such  imperfect  remedy  would,  in  most  instances,  be  a  sub- 
:stantial  denial  of  justice,  which  conclusion  is,  in  my  opinion, 
unquestionably  true.  The  courts  have  therefore  sustained 
these  equitable  suits,  and  have  granted  the  relief,  and  have 
uniformly  placed  their  decision  upon  the  inherent  jurisdic- 
tion of  equity  to  interfere  for  the  prevention  of  a  multiplic- 
ity of  suits.  The  result  has  demonstrated  the  fact  that 
complete  and  final  relief  may  be  given  to  an  entire  commu- 
nity by  means  of  one  judicial  decree,  which  would  otherwise 
require  an  indefinite  amount  of  separate  litigation  by  indi- 
viduals, even  if  it  were  attainable  by  any  means.^  ^    In  sev- 

2  Cases  where  the  suit  was  by  a  number  of  tax-payers  as  co-plaintiffs,  or 
by  one  suing  on  behalf  of  all  others:  Attorney-General  v.  Heelis,  2  Sim.  & 
St.  67,  76;  Newmeyer  v.  Missouri,  etc.,  R.  R.  Co.,  52  Mo.  81,  84-89,  14  Am. 
Rep.  391;  Rice  v.  Smith,  9  Iowa,  570,  576;  Stokes  v.  Scott  Co.,  10  Iowa,  166; 
McMillan  v.  Boyles,  14  Iowa,  107;  Rock  v.  Wallace,  14  Iowa,  593;  Ten  Eyck 
■V.  Keokuk,  15  Iowa,  486;  Chamberlain  v.  Burlington,  19  Iowa,  395;  Williams 

(c)  Quoted  and  approved  in  County  text  are  supported  by  the   following 

<Jourt   V.    Boroman,    34   W.   Va.    362.  cases:     Greedup  v.  Franklin  County, 

368,  12  S.  E.  490;  Williams  v.  County  30  Ark.   101;    Bode  v.   New  England 

Court,  26   W.   Va.   488,  53  Am.  Rep.  Inv.  Co.,  6  Dak.  499,  42  N.  W.  658; 

94.  Knopf  V.  First  Nat.  Bk.,  173  111.  S31, 

'd)  Enjoining  Taxation;  One  or  More  50  N.  E.  660;  City  of  Chicago  v.  Col- 
Plaintiffs  Suing  on  Behalf  of  All  lins,  175  111.  445,  51  N.  E.  907,  67 
Taxpayers. —  The   concluaiotis   of    tlio  Am.  St.  Rep.  224,  49  L.  R.  A.  408; 


407 


TO   PREVENT   A   MULTIPLICITY   OF   SUITS. 


§    260 


eral  of  the  states  there  is  a  long  series  of  these  cases,  ex- 
tending through  a  considerable  period  of  time,  and  it  may 

V.  Peinny,  25  Iowa,  436;  Hanson  v.  Vernon,  27  Iowa,  28,  1  Am.  Rep.  215; 
Zorger  v.  Township  of  Rapids,  36  Iowa,  175,  ISO;  Board  of  Commissioners 
V.  Brown,  28  Ind.  161;  Lafayette  v.  Fowler,  34  Ind.  140;  Noble  v.  Vincennea, 
42  Ind.  125;  Board  of  Commissionera  v.  Markle,  46  Ind.  96,  103-105;  Gallo- 
way V.  Chatham  R.  R.  Co.,  63  N.  C.  147,  149,  150;  Brodnax  v.  Groom,  64 
N".  C.  244,  246,  247;  Worth  v.  Board  of  Commissioners,  1  Winst.  Eq.  70; 
Vanover  v.  Davis,  27  Ga.  354,  358 ;  Mott  v.  Pennsylvania  R.  R.  Co.,  30  Pa.  St. 
9,  62  Am.  Dec.  664;  Sharpless  v.  Philadelphia,  21  Pa.  St.  148,  59  Am.  Dec. 
759;  Moers  v.  Reading,  21  Pa.  St.  188;  Bull  v.  Read,  13  Gratt.  78,  86,  87; 
Mayor  of  Baltimore  v.  Gill,  31  ]\Id.  375,  392-395;  Barr  v.  Deniston,  19  N.  H, 
170,  180;  Merrill  v.  Plainfield,  45  N.  H.  126,  134;  New  London  v.  Brainard,  22 
€onn.  552,  556,  557;  Webster  v.  Town  of  Harwinton,  32  Conn.  131,  140;  Ter- 
rett  V.  Town  of  Sharon,  34  Conn.  105;  Scofield  v.  Eighth  School  District,  27 
€onn.  499,  504;  Colton  v.  Hanchett,  13  111.  615,  618;  Robertson  v.  City  of 
Rockford,  21  111.  451;  Perkins  v.  Lewis,  24  111.  208;  Butler  v.  Dunham,  27  111. 


•German  Alliance  Assur.  Co.  v.  Van 
Cleave,  191  111.  410,  61  N.  E.  94; 
Carlton  v.  Newinan,  77  Me.  408,  1 
Atl.  194;  Clee  v.  Sanders,  74  Mich. 
«92,  42  N.  W.  154;  Ranney  v.  Bader, 
67  Mo.  476;  Sherman  v.  Benford,  10 
R.  I.  559;  McTwiggan  v.  Hunter,  18 
R.  I.  776,  30  Atl.  962,  2  Ames  Cas. 
Eq.  Jur.  71;  Quimby  v.  Wood,  19 
R.  I.  571,  35  Atl.  149;  McClung  v. 
Livesay,  7  W.  Va.  329;  Doonan  v. 
Board  of  Education,  9  W.  Va.  246; 
Corrothers  v.  Board  of  Education,  16 
W.  Va.  527;  Williams  v.  Comity 
Court,  26  W.  Va.  488,  53  Am.  Rep. 
«4;  Blue  Jacket  v.  Scherr,  50  W.  Va. 
533,  40  S.  E.  514.  In  Texas,  while 
the  general  doctrine  appears  to  be 
recognized,  injunction  will  not  lie 
after  suits  have  already  been  begun 
for  the  collection  of  taxes;  McMickle 
V.  Hardin,  25  Tex.  Civ.  App.  222,  61 
S.  W.  322.  In  Arkansas  the  juris- 
diction is  now  expressly  conferred  by 
the  Constitution,  1874,  art.  16,  §  13: 
Little  Rock  v.  Prather,  46  Ark.  471; 
Taylor  v.  Pine  Bluff,  34  Ark.  603; 
Little  Rock  v.  Barton,  33  Ark.  436; 
but  was  recognized  previously; 
Greedup  v.  Franklin  County,  30  Ark. 
109.     The  necessity   of  the  jurisdic- 


tion was  stated  with  great  force  in 
the  case  last  cited :  "  Tliese  plain- 
tiffs have  sued  in  behalf  of  them- 
selves and  of  the  other  tax-payers  of 
the  county;  this  they  may  do  in  a 
court  of  equity.  But  suppose  we 
send  them  back  to  a  court  of  law, 
to  assert  their  rights ;  we  know  that 
at  the  common  law  there  can  be  no 
combination  of  parties;  each  tax-payer 
must  sue  in  his  own  right  to  recover 
the  tax  erroneously  assessed  against 
him.  What  a  multiplicity  of  suits 
at  law  must  be  brought,  in  order  to 
get  redress  for  one  injury  which  it 
is  proposed  to  stop  in  a  single  suit 
in  equity;  we  have  no  means  of  as- 
certaining the  number  of  tax-payers 
in  Franklin  county,  but  may  suppose 
that  they  exceed  two  thousand.  Of 
these  perhaps  five  hundred  may  be 
able  to  assert  their  rights  at  law, 
whilst  fifteen  hundred,  who  pay  less 
tax,  are  in  moderate  circumstances  or 
too  poor  to  employ  counsel  to  stop 
tlie  payment  of  an  erroneous  tax  ten 
times  less  than  it  would  cost  to  em- 
ploy coimsel  to  prosecute  their  suit. 
The  mere  suggestion  of  the  8itu^- 
tion,  if  left  to  redress  at  law,  shows 
that   it   in   effect    would   amount   to 


§  260 


EQUITY   JUKISPRUDENCB. 


40S 


well  happen  that  in  the  earliest  decisions  of  such  a  series  the- 
court  has  stated  the  reasons  for  its  judgment  at  large,  and 

474;  Drake  v.  Phillips,  40  111.  388,  393;  Vieley  v.  Thompson,  44  111.  9,  13; 
Allison  V.  Louisville,  etc.,  K.  R.  Co.,  9  Bush,  247,  252;  Lane  v.  Schomp,  2a 
N.  J.  Eq.  82,  89;  Noesen  v.  Port  Washin^on,  37  Wis.  168. 

Cases  where  the  suit  was  by  only  one  tax-payer,  purporting  to  sue  for  him- 
self alone:  Board  of  Commissioners  v.  Templeton,  51  Ind.  2G6;  Board  of 
Commissioners  v.  McClintock,  51  Ind.  325,  328;  Board  of  Commissioners  v. 
Markle,  46  Ind.  96,  103-105;  Lafayette  v.  Cox,  5  Ind.  38;  Nill  v.  Jenkinson,. 
15  Ind.  425;  Coffman  v.  Keightley,  24  Ind.  509;  Oliver  v.  Keightley,  24  Ind. 
614;  Nave  v.  King,  27  Ind.  356;  Board  of  Commissioners  v.  McCarty,  27  Ind. 
475;  Harney  v.  Indianapolis,  etc.,  R.  R.  Co.,  32  Ind.  244,  247,  248;  English  v. 
Smock,  34  Ind.  115,  7  Am.  Rep.  215;  Williams  v.  Peinny,  25  Iowa,  436; 
Hanson  v.  Vernon,  27  Iowa,  28,  1  Am.  Rep.  215;  Zorger  v.  Township  of 
Rapids,  36  Iowa,  175,  180;  Merrill  v.  Plainfield,  45  N.  H.  126,  134;  Webster 
V.  Town  of  Harwinton,   32   Conn.   131,   140;   Terrett  v.  Town  of   Sharon,   34 


a  denial  of  redress  to  offer  it  to  them. 
In  such  cases  chancery  will  interfere 
to  prevent  multiplicity  of  suits." 
Ranney  v.  Bader,  67  Mo.  476,  480, 
by  Norton,  J. ;  "  Equity  will  main- 
tain jurisdiction  to  prevent  multi- 
plicity of  suits,  and  no  stronger  case 
could  be  put  for  entertaining  juris- 
diction under  this  rule,  than  is  pre- 
sented, when  one  taxpayer  for  him- 
self and  all  other  taxpayers  of  a 
towTiship  or  county,  similarly  inter- 
ested, brings  his  bill,  asking  the  chan- 
cellor to  put  forth  restraining  proc- 
ess to  prevent  the  imposition  and 
collection  of  an  authorized  tax, 
and  thus  settle  in  one  suit,  what  it 
would  take  hundreds  and,  perhaps, 
thousands  to  do,  if  such  relief  were 
denied,  and  the  parties  subjected  to 
the  payment  of  such  tax  were  driven, 
each  one,  to  his  action  at  law  for 
redress."  In  Carlton  v.  Newman,  77 
Me.  408,  1  Atl.  194,  the  conclusions 
of  the  author  with  respect  to  the  third 
and  fourth  classes  are  approved 
and  supported  by  quotations  from 
many  of  the  author's  cases,  and  from 
Woodruff  v.  North  Bloomficld  G.  M. 
Co.,  8  Sawy.  628,  16  Fed.  25,  and 
Cummings  v.  Nat.  Bank,  101  U.  S. 
157.     The  court  says,  by  Virgin,  J.: 


"  Moreover,  it  is  generally  held  that 
a  bill  to  restrain  the  collection  of  a 
tax  cannot  be  maintained  on  the  sole 
ground  of  its  illegality. 
There  must  be  some  allegation  pre- 
senting a  case  of  equity  jurisdiction. 
But  we  are  of  the  opinion 
that  when  it  appears  that  an  entire 
school  district  tax  is  illegal  because 
assessed  without  authority  of  law,  a 
bill  to  enjoin  its  collection  brought 
by  all  of  the  taxpayers  of  the  dis- 
trict jointly  on  whose  polls  and  es- 
tates the  tax  has  been  assessed,  or  by 
any  number  thereof  on  behalf  of 
themselves  and  all  the  others  simi- 
larly situated,  may  be  sustained  upon 
the  ground  of  the  inherent  jurisdic- 
tion of  equity  to  interpose  for  the 
purpose  of  preventing  a  multiplicity 
of  suits;  that  although  each  tax- 
payer has  some  legal  remedy,  it  is 
grossly  inadequate  when  compared 
with  the  comprehensive  and  complete 
relief  afforded  by  a  single  decree.' 
Knopf  v.  First  Nat.  Bank,  173  111. 
331,  50  N.  E.  660,  by  Cartwright, 
J. :  "  In  a  case  where  a  proposed 
tax  is  illegal,  complete  relief  may  be 
given  to  thousands  of  taxpayers  by 
one  decree,  which  would  otherwise  re- 
quire  an   indefinite   number   of   suits 


409 


TO   PKEVENT   A    MULTIPLICITY    OF    SUITS. 


§    260 


has  expressly  announced  the  principle  of  preventing  a  mul- 
tiplicity of  suits  as  the  ground  of  its  jurisdiction,  while  in 

Conn.  105;  Prettyman  v.  Supervisors,  19  111.  406,  71  Am.  Dec.  230;  Clarke 
V.  Supervisors,  27  111.  305,  311;  Taylor  v.  Tliompson,  42  111.  9;  Cleghorn  v. 
Postlewaite,  43  111.  428,  431;  Vieley  v.  Thompson,  44  111.  9,  13;  Allison  v. 
Louisville,  etc.,  R.  R.  Co.,  9  Bush,  247,  252. 

It  should  be  observed  that  all  of  this  latter  group  of  cases  arose  in 
states  where  the  courts  had  already  decided  that  a  suit  by  many  tax-payer* 
joined  as  plaintiffs,  or  by  one  suing  on  behalf  of  the  others,  would  be  sus- 
tained on  the  ground  of  preventing  a  muFtiplioity  of  suits,  and  they  regarded 
a  suit  by  one  tax-payer  alone  as  substantially  the  same  in  its  effect,  and 
treated  it  in  the  same  manner,  citing  the  same  precedents  indiscriminately 
in  support  of  one  or  the  other  form.  Indeed,  in  many  of  tljese  latter  cases, 
the  court  expressly  said  that  the  suit  might  be  brought  in  either  form,  by 
many  tax-payers  joining  as  plaintiffs,  by  one  suing  on  behalf  of  the  others, 
or  by  one  suing  alone.  No  distinction  in  principle  was  made  between  tha 
three.e 


by  different  tax-payers  who  all  have 
the  same  remedial  right,  and  where 
the  threatened  tax  would  be  an  injury 
to  all  alike.  It  is  the  only  method 
of  doing  substantial  justice  by  re- 
lieving the  whole  body  of  tax-payers, 
where  each  of  them  must  otherwise 
maintain  an  action  at  the  same  time 
and  on  the  same  ground";  reviewing 
the  Illinois  cases.  In  Williams  v. 
County  Court,  26  W.  Va.  488,  53  Am. 
Rep.  94,  the  whole  subject  was  most 
exhaustively  discussed,  the  author's 
cases  re-examined,  and  his  conclusions 
adopted,  save  in  a  minor  point  which 
is  noticed  below,  note  (e). 

For  tax  cases  of  the  author's  fourth 
class,  see  post,  §  261,  note  b.  Class 
Fourth,  (I),  (b)  ;  of  the  second 
class,  see  ante,  §  253,  notes  2  and 
(b). 

Relief  against  Acts  of  Municipal 
Corporations  whereby  Public  Burdens 
are  Unlawfully  Increased. —  Th«  au- 
thor's treatment  of  this  subject  is 
mentioned  with  approval  in  Allen  v. 
Intendant,  etc.,  of  La  Fayette,  89  Ala. 
641,  8  South.  30,  9  L.  R.  A.  497; 
Macon,  etc.,  R.  R.  Co.  v.  Gibson,  85 
Ga.  1,  II  S.  E.  442,  21  Am.  St.  Rep. 
135;    County   Court  v.   Boreman,   34 


W.  Va.  362,  368,  12  S.  E.  490,  and  in 
Dillon  on  Municipal  Corporations 
(4th  ed.),  §  922,  note.  The  jurisdic- 
tion of  equity  to  interfere  in  such 
cases  on  behalf  of  the  taxpayer  is 
hardly  questioned  at  the  present  day. 
See  Pom.  Eq.  Rem.  Comparatively 
few  of  the  innumerable  recent  cases 
which  illustrate  this  jurisdiction 
have  inquired  into  its  grounds ;  but 
the  rationale  of  the  doctrine  advanced 
by  Judge  Dillon  has  frequently  re- 
ceived the  sanction  of  the  courts,. 
viz.,  that  the  relation  of  the  inhabit- 
ants of  a  municipality  to  its  govern- 
ing body,  for  the  purposes  of  equita- 
ble jurisdiction,  is  analogous  to  that 
of  the  stockholders  of  a  private  cor- 
poration to  its  board  of  directors.  It 
is  plain,  however,  that  this  analogy 
is  not  a  perfect  one. 

Injunction  against  the  enforcement 
of  an  invalid  municipal  ordinance 
affecting  many  persons.  See  post, 
§  261,  note  b.  Class  Tliird,  (I),  (b). 

(e)  Quoted,  Williams  v.  County 
Court,  26  W.  Va.  488,  501,  53  Am. 
Rep.  94.  In  West  Virginia  the  &uit 
must  be  expressly  in  behalf  of  all  the 
tax-payers:  Id.;  McClung  v.  Live- 
say,  7  W.  Va.  329;  Doonan  v.  Board 


§    260  EQUITY   JURISPRUDENCE.  410 

the  succeediiig  ones  the  judges  have  not  thought  it  necessary 
"to  repeat  the  reasons  and  ground  which  had  already  been 
fully  explained/    It  is  plain  that  the  latter  cases,  no  less 

The  case  of  Attorney-General  v.  Heelis,  2  Sim.  &  St.  67,  76,  is  important, 
since  it  shows  that  the  doctrine  was  applied  in  exactly  the  same  manner,  under 
exactly  analogous  circumstances,  by  an  English  court  of  equity.  A  rate  had 
been  laid  on  a  parish  which  w^as  claimed  to  be  illegal.  The  court  held  that 
as  the  inhabitants  of  the  parish  have  a  common  interest  to  avoid  the  rate 
(i.  e.,  a  local  tax),  any  one  or  more  of  them  may  sue  on  behalf  of  himself 
and  the  other  inhabitants  to  enjoin  the  enforcement  of  the  rate.  Newmeyer 
V.  Missouri,  etc.,  R.  R.  Co.,  52  Mo.  81,  84-89,  is  an  instructive  case.  Being 
recent,  the  court  had  before  it  a  large  number  of  decisions,  all  the  leading 
ones  in  which  the  jurisdiction  had  been  denied,  as  well  as  those  in  which  it 
had  been  sustained.  Its  examination  of  these  authorities  was  very  full. 
The  plaintiffs  sued  for  themselves  and  all  other  tax-payers  in  the  coimty  of 
Macon,  as  owners  of  separate  property,  real  and  personal,  to  set  aside  a  reso- 
lution or  order  of  the  county  officials  subscribing  one  hundred  and  seventy-five 
thousand  dollars  to  the  stock  of  the  railroad,  and  to  have  the  bonds  issued 
by  the  county  for  the  said  amount  canceled,  on  the  ground  that  the  whole 
proceeding  was  illegal,  and  would  unlawfully  increase  taxation.  The  suit  was 
sustained  and  the  relief  granted.  In  Lane  v.  Schomp,  20  N.  J.  Eq.  82,  89, 
which  was  also  a  suit  on  behalf  of  the  tax-payers  of  a  town  to  prevent  an 
unlawful  bonding  of  the  town,  the  chancellor  of  New  Jersey  expressly  held 
that  the  case  was  not  controlled  by  the  principle  asserted  in  some  decisions, 
and  particularly  described  hereafter,  that  where  an  individual  has  suffered 
some  injury  from  a  public  act,  in  common  with  all  members  of  the  same  com- 
munity or  local  district,  he  has  no  cause  of  action  or  remedial  right  enforce- 
able in  any  court  of  justice. 

of   Education,    9    W.    Va.    246;    Blue  in  the   district,  and  it  would   be  an 

•  Jacket,  etc.,  Co.  v.  Scherr,  50  W.  Va.  irrelevant    distinction    that    the    bill 

533,  40  S.  E.  514.     Compare  Knopf  v.  does  not,  in  set  phrase,  purport  to  be 

First  Nat.  Bank,  173  111.  331,  50  N.  on  behalf  of  all  others  having  indi- 

E    660:      "The  right  of  each  one  is  vidual  and  separate  interests  of  the 

individual  and  separate,  but  the  com-  same  character." 

n^on    relation    has   been   deemed   suf-  It  has  not  seemed  necessary  to  add 

iicient  to  authorize  the  exercise  of  the  to  the  author's  citation  of  cases  from 

power  of  equity  either  where  the  suit  those  states  —  Illinois,  Indiana,  Iowa, 

is  by  a  number  of  tax-payers  on  be-  etc. —  which  permit  the  injunction  of 

half   of  themselves  and   others   simi-  illegal    taxation    at   the   suit    of   the 

larly    situated,    or   by   one    suing   on  single  plaintiff  on  the  mere  ground  of 

behalf  of   all   others,   or   even   where  its  illegality.     For  a  further  discus- 

the  suit  is  by  one  suing  for  himself  sion  of  equitable  relief  against  taxa- 

alone,  where   the  effect  would   be   to  tion,  and  a  statement  of  the  varying 

flettlc  the  rights  of  all.     In  this  case  rules     established     in     the     different 

the  suit  is  to  maintain  the  rights  of  states,  see  Pom.  Eq.  Rem. 

the    stockholders    [of    the    plaintiff],  (f)  Quoted,     Williams     v.     County 

but    the    necessary    effect    is    to    de-  Court,  26   W.  Va.   488,  502,  53  Am. 

termine  the  right  of  every  tax-payer  Rep.  94. 


411  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §    261 

than  the  former  ones,  are  an  authority  for  the  doctrine 
under  examination.  In  all  these  suits  by  lot-owners  to  be 
relieved  from  a  local  assessment,  and  by  tax-payers  to  be 
relieved  from  a  tax  or  burden  of  public  debt,  there  is  no  pre- 
tense of  any  privity,  or  existing  legal  relation,  or  common 
property  or  other  right,  among  the  plaintiffs  individually, 
or  between  them  as  a  body  and  the  defendant.  There  is  no 
common  right  of  the  single  adversary  party  against  them 
all,  as  is  found  in  the  case  of  a  parson  against  his  parishion- 
ers for  tithes,  or  of  the  lord  of  a  manor  against  his  tenants 
for  a  general  fine,  or  for  certain  rights  of  common;  nor  is 
there  any  common  right  or  interest  among  them  against 
their  single  adversary.  The  only  community  among  them 
is  in  the  questions  at  issue  to  be  decided  by  the  court ;  in  the 
mere  external  fact  that  all  their  remedial  rights  arose  at  the 
same  time,  from  the  same  wrongful  act,  are  of  the  same 
kind,  involve  similar  questions  of  fact,  and  depend  upon  the 
same  questions  of  law.^  This  sort  of  community  is  suffi- 
cient, in  the  opinion  of  so  many  and  so  able  courts,  to  au- 
thorize and  require  the  exercise,  under  such  circumstances, 
of  the  equitable  jurisdiction,  in  order  to  prevent  a  multiplic- 
ity of  suits. 

§  261.  Other  Special  Cases  of  the  Third  and  Fourth  Classes." 
—  There  are  some  other  cases,  belonging  to  the  third  or 
fourth  of  my  general  classes,  which  present  a  special  condi- 
tion of  facts,  and  do  not  admit  of  being  arranged  in  either 
of  the  foregoing  groups.  I  have  placed  them  in  the  foot- 
note.^ ^ 

1  BrinkerhoflF  v.  Brown,  6  Johns.  Ch.  139,  151,  156;  New  York  &  N.  H.  K.  R. 
V.  Schuyler,  17  N.  Y.  592,  599,  600,  605-608,  34  N.  Y.  30,  44-46;  but  see 
County  of  Lapeer  v.  Hart,  Harr.    (Mich.)    157.     In  Brinkerhoff  v.  Brown,  6 

(g)    Quoted  with  approval,  Michael  third  and  fourth,  the  editor  has  col- 

V.  City  of  St.  Louis,  112  Mo.  610,  20  lected,     in     each     class,     first,     cases 

S.  W.  666.  where  the  prevention  of  a  multiplic- 

(a)  This  section  is  cited  in  Enright  ity  of  suits  was  the  sole  ground  of 
V.  Grant,  5  Utah,  334,  15  Pac.  268,  a  equitable  jurisdiction,  or  was  relied 
«ase  of  the  "  third  class."  on   by   the   court   as   an   independent 

(b)  In  arranging  the  very  numer-  ground  of  jurisdiction;  second,  cases 
ous   recent   cases   illustrating   classes  where  other   grounds   of   jurisdiction 


§    2G2  EQUITY    JURISPRUDENCE.  412 

§  262.    Opposing  Decisions  Examined. —  Thus  far  the  dis- 
cussion has  been  chiefly  confined  to  the  various  instances  in 

Johns.  Cb.  139,  which  was  a  bill  by  a  number  of  individual  judgment  cred- 
itors, having  wholly  distinct  and  separate  judgments  and  demands,  to  reach 
the  property  of  their  common  debtor,  Chancellor  Kent  said  (p.  151)  :  "The 
plaintiflFs  are  judgment  creditors  at  law,  seeking  the  aid  of  this  court  to 
render  their  judgments  and  executions  effectual  against  certain  fraudulent 
acts  of  their  debtor  equally  affecting  all  of  them.  The  question  is,  whether 
judgment  creditors,  whose  rights  are  established  and  their  liens  fixed  at  law, 
may  not  unite  in  a  bill  to  remove  impediments  to  the  remedy  created  by 
the  fraud  of  the  opposite  party.  It  is  an  ordinary  case  in  this  court  for  cred- 
itors to  unite,  or  for  one  or  more  on  behalf  of  themselves  and  the  rest,  to 
Bue  the  representative  of  the  debtor  in  possession  of  the  assets,  and  to  seek 
an  account  of  the  estate.  This  is  done  to  prevent  a  multiplicity  of  suits,  a 
very  favorite  object  with  this  court."  And  at  page  156 :  "A  bill  may  be  filed 
against  several  persons  relative  to  matters  of  the  same  nature,  forming  a 
connected  series  of  acts,  and  all  intended  to  defraud  and  injure  the  plain- 
tiflF,  and  in  which  all  the  defendants  were  more  or  less  concerned,  though 
not  jointly,  in  each  act."  This  opinion  of  Chancellor  Kent  shows  that  the 
imiting  of  numerous  distinct  judgment  creditors  in  one  creditor's  suit  against 
the  same  defendant,  or  the  suing  by  one  such  creditor  for  himself  and  all 
others,  which  has  now  become  so  familiar  a  mode  of  obtaining  relief,  was 
originally  permitted  and  adopted  on  the  ground  of  preventing  a  multiplicity 
of  suits.  This  fact  is  of  great  importance  in  illustrating  the  meaning  and 
extent  of  that  doctrine;  since  the  only  bond  of  union  among  the  separate 
creditors  is  their  community  of  interest  in  the  relief  demanded,  in  the  ques- 
tions at  issue  and  decided  by  the  court.c     New  York  &  N.  H.  R.  R.  Co. 

appear  to  exist,  and  the  question  is  defense,  enjoined:    Defendant,  a  rail- 

cbiefly    one    of    joinder    of    parties.  road,   claiming  certain  land  under  a 

Cases  in  the  first  groups,  of  course,  land  grant  act,  brought  or  threatened 

afford  stronger  proof  of  the  existence  to    bring    separate    actions    of    eject- 

of  the  jurisdiction  than  those  in  the  ment  against  the  plaintiffs,  who  were 

second.     In  some  instances,  however,  in  possession  of  separate  tracts  and 

it  is  difficult  to  determine  to  which  claimed   to   be   owners   thereof   under 

group  the  case  is  properly  assignable,  the  homestead  and  pre-emption  laws. 

for  the  obvious   reason,   that   if  the  By  Harlan,  J. :     "  They  have  thus  a 

doctrine  is  accepted  as  a  ground  of  community  of  interest  in  the  questions 

jurisdiction,   it  is  immaterial   to  the  of  law  and  fact  upon  which  the  issue 

court,    in    its    decision    of    the    case,  between    the    railroad    company    and 

whether  the  separate  causes  of  action  each     plaintiff    depends.       The    com- 

consolidatcd     therein     are     legal     or  pany's  claim   is  good  or  bad  against 

equitable  in   their   nature;    see  ante,  all  the  plaintiffs,  as  it  may  be  good 

notes  at  end  of  §  257.  or  bad  against  any  one  of  them ;  and 

Third  Class.     (I),  Cases  where  the  yet  a  judgment  in  favor  of  one,  in  an 

Multiplicity  of  Suits  Conferred  Juris-  — 

diction  or  Warranted  Its  Exercise. —  (e)  The  author's  note  is  cited  in  t'>:e 

(a)   Actions  at  Law  against  Numer-  similar   case  of  Enriglit  v.  Grant,   > 

OUS  Parties,  where  each  had  tlie  same  Utah,  340,  15  Pac.  270. 


4i: 


TO    i'iiEVENT    A    MULTIPLICITY    OF    SUITS. 


§    262 


•which  the  jurisdiction  has  been  established,  upheld,  and  con- 
firmed ;  I  now  proceed  to  consider  the  opposite  side  of  the 

V.  Schuyler,  17  N.  Y.  592,  was  certainly  one  of  the  most  remarkable  ac- 
tions recorded  in  the  annals  of  litigation.  Schuyler,  the  treasurer  of  a 
railroad  company,  had  during  a  period  of  two  or  three  years  fraudulently 
issued  spurious  certificates  of  stock  of  the  company,  until  at  last  such 
certificates  were  scattered  among  about  one  hundred  bona  fide  holders.  Each 
fraudulent  issue  was  accomplished  by  a  similar  contrivance  and  similar  acts 
of  deception;  but  each  was,  of  course,  an  entirely  distinct  and  separate  trans- 
action from  all  the  others.  The  railroad,  claiming  that  these  certificates  were 
null  and  void,  brought  this  suit  against  all  the  holders  for  the  purpose  of  hav- 
ing them  surrendered  up  and  canceled.  The  suit  was  sustained  by  analogy  to 
a  bill  of  peace,  in  an  elaborate  opinion  of  the  court  which  is  too  long  for 
quotation.  See  17  N.  Y,  592,  599,  600,  605-60S,  34  N.  Y.  30,  44-46.  Here 
the  only  pretense  of  common  interest  among  the  certificate-holders  was  in  the 
similar  questions  of  fact  and  the  same  question  of  law  at  issue  upon  which 
all  their  claims  depended;  there  was  no  common  title  from  which  these  ques- 
tions sprung,  nor  any  community  of  interest  in  the  subject-matter.  See  also 
the  recent  and  strongly  analogous  case  of  Sheflfield  Water  Works  v.  Yeomans, 
L.  R.  2  Ch.  8,  11;  a^ite,  note  to  §  256;  and  Black  v.  Shreeve,  7  N.  J.  Eq.  440, 
456,  457;  ante,  note  to  §  252;  and  Board  of  Supervisors  v.  Deyoe,  77  N.  Y. 
219,  225. 


action  of  ejectment  brought  by  the 
company,  would  not  avail  the  others 
in  separate  actions  of  ejectment 
against  them.  The  case  is  peculiarly 
one  in  which  the  jurisdiction  of  a 
court  of  equity  may  be  invoked  in 
order  to  avoid  a  multiplicity  of  suits 
[citing  Pom.  Eq.  Jur.,  §§  245,  255, 
257,  268,  269,  273].  The  fact  that 
the  several  tracts  of  land  here  in  dis- 
pute were  entered  at  different  dates, 
and  by  different  persons,  is  of  no  con- 
sequence, as  the  validity  of  each 
entry,  as  against  the  railroad  com- 
pany, depends  upon  precisely  the 
same  questions  of  law  and  fact;"  Os- 
borne v.  Wisconsin  Central  R.  Co., 
43  Fed.  824,  826,  827.  See  also  the 
similar  case  of  Lovett  v.  Prentice,  44 
Fed.  459,  quoting  this  chapter.  Suits 
by  one  insured  against  numerous  in- 
surance companies  were  enjoined, 
where  each  had  the  defense  that  its 
policy  was  obtained  by  the  same 
fraudulent  misrepresentations  of  the 
insured:     Virginia-Carolina      Chem- 


ical Co.  v.  Home  Ins.  Co.,  113  Fed. 
1  (C.  C.  A.),  citing  this  chapter, 
S.  C,  109  Fed.  681;  see  also  Ameri- 
can Cent.  Ins.  Co.  v.  Landau,  56  N.  J. 
Eq.  513,  39  Atl.  400,  by  Pitney,  V.  C, 
quoting  or  citing  this  chapter  and 
reviewing  many  eases;  Rochester 
German  Ins.  Co.  v.  Schmidt,  126  Fed. 
998 ;  Tisdale  v.  Insurance  Co.  of 
North  America  (Miss.),  36  South. 
568. 

(b)  Injunction  against  the  enforce- 
ment of  an  invalid  municipal  ordi- 
nance aflfecting  many  persons.  In 
City  of  Chicago  v.  Collins,  175  111.  445, 
51  N.  E.  904,  2  Ames  Cas.  Eq.  Jur.  92, 
numerous  residents  and  taxpayers 
sued  in  behalf  of  themselves  and  all 
others  similarly  situated  to  enjoin  the 
enforcement  of  an  ordinance  providing 
for  the  payment  of  a  license  fee  on 
vehicles.  The  court,  quoting  §  245 
of  the  text,  and  upholding  the  injunc- 
tion, says  in  part:  "In  this  case 
three  hundred  and  seventy-three  com- 
plainants present  facts  showing  that 


§  262 


EQUITY   JURISPRUDENCE. 


414 


question,  and  to  examine  those  groups  of  cases  in  which  the 
jurisdiction  has  either  been  positively  denied  under  the  same 


between  200,000  and  300,000  citizens 
and  tax-payers  are  affected  by  the  pro- 
visions of  the  ordinance,  and  if  com- 
pelled to  pay  the  illegal  tax,  hard- 
ship and  injustice  will  result  to  an 
enormous  number  of  persons.  If  they 
pay  the  tax  and  are  compelled  to  re- 
sort to  a  court  of  law  to  recover  back 
the  amount  so  paid,  the  business  of 
the  courts  will  be  obstructed  by  the 
number  of  actions  of  the  same  char- 
acter. Long  delay  will  ensue,  and  the 
costs  to  the  persons  so  paying  such 
illegal  tax  or  license  fee  will  be 
greater  than  the  amount  to  be  re- 
covered." ISee  also  the  similar  cases 
of  Wilkie  v.  City  of  Chicago,  188  111. 
444,  80  Am.  St.  Rep.  182,  58  N.  E. 
1004. 

(c)  Injunction  Against  Trespass,  or 
other  Wrongful  Act  of  the  Defend- 
ant, Affecting  Numerous  Plaintiffs, 
where  each  suing  singly  might  have 
an  "adequate"  remedy  at  law:  Suit 
by  a  number  of  importers  of  tea 
which  was  about  to  be  destroyed  by 
the  collector  of  customs  under  color 
of  a  statute  alleged  by  the  plaintiffs 
to  be  unconstitutional.  Though  dam- 
ages would  be  an  adequate  compen- 
sation to  each  plaintiff  for  any  loss 
which  he  would  sustain  by  reason  of 
the  destruction  of  the  tea,  and  though 
each  has  a  separate  and  distinct  in- 
terest in  tlie  tea,  they  have  "  a  com- 
mon interest  in  the  question  whether 
the  defendant  is  authorized  by  law  to 
destroy  such  tea;"  Sang  Lung  v. 
Jackson,  85  Fed.  502.  Numerous 
owners  of  hshing  interests  in  a  lake 
united  in  a  suit  to  enjoin  an  unau- 
tlioriztid  and  illegal  act  of  certain 
commissioners,  in  opening  a  channel 
between  the  lake  and  the  ocean.  It 
did  not  appear  that  the  threatened 
act  would  cause  any  of  the  plaintiffs 
such  damage  a«  to  justify  an  injunc- 


tion at  his  single  suit.  "  The  princi- 
pal, if  not  the  only,  ground  upon 
which  the  court  can  properly  take 
jurisdiction  in  this  case  is  that  there 
are  many  parties  plaintiff,  all  of 
whom,  as  land-owners  on  Great  Pond, 
have  the  same  rights,  which  can  be 
settled  in  one  action  in  equity,  so  aa 
to  avoid  a  multiplicity  of  suits  at 
law.  Upon  that  ground  it  seems  to- 
be  our  duty  to  determine  the  rights 
of  the  parties  in  this  form  of  pro- 
ceeding." Smith  V.  Smith,  148  Mass. 
1,  18  N.  E.  595,  2  Ames  Cas.  Eq.  Jur. 
64. 

(d)  Injunction  against  Breach  of 
Contract  affecting  numerous  parties. 
A  contract  by  a  city  with  a  gas  com- 
pany, authorizing  the  use  of  the  city's 
streets,  fixed  maximum  rates  to  be 
charged  its  inhabitants.  Jurisdiction 
of  a  suit  to  enjoin  enforcement  of  ex- 
cessive rates  was  rested  chiefly  on  the 
ground  of  the  avoidance  of  a  multi- 
plicity of  suits  by  the  inhabitants 
against  the  gas  company,  and  the  city 
was  held  a  proper  party  to  sue  as 
representative  of  its  inhabitants. 
Muncie  Natural  Gas  Co.  v.  City  of 
Muncie,  160  Ind.  97,  66  N.  E.  430, 
441,   citing  this   chapter. 

(e)  Cancellation  in  Favor  of  Nu- 
merous Plaintiffs. —  Promissory  notes 
were  obtained  from  fifty-seven  persons 
by  the  defendant's  same  fraudulent 
misrepresentation.  A  suit  by  1  liese 
persons  to  cancel  their  several  notes 
was  sustained,  jurisdiction  being 
rested  on  the  grounds  maintained  by 
the  author.  Higlitower  v.  Mobile,  J.  & 
K.  C.  R.  R.  Co. (Miss.),  36  South.  82. 
The  situation  here  is  the  converse  of 
that  stated  post,  in  this  note,  class 
fourth   (e). 

(f)  Pecuniary  Relief  to  Numerous 
Plaintiffs. —  in  Smitli  v.  ]?;uik  of  New 
Ent'Iand,  09  N.  H.  254,  45  Atl.  1082, 


415 


TO    PKEVENT    A    MULTIPLICITY    OF    SUITS. 


§262 


circumstances  in  which  it  had  been  asserted  and  exercised 
by  the  authorities  previously  quoted,  or  has  been  carefully 


2  Araes  Cas.  Eq.  Jur.  79,  the  holders 
of  numerous  certificates  of  deposit 
were  permitted  to  join  in  an  action 
charging  the  defendants  with  a  negli- 
gent breach  of  trust  afTecting  them  all 
alike,  although  each  plaintiff  might 
maintain  his  action  at  law  for  dam- 
ages ;  since  the  "  question  of  the  de- 
fendants' negligence  would  be  exactly 
the  same  in  all  the  actions  and  would 
necessarily  be  determined  upon  the 
same  evidence."  See  extract  from  the 
opinion  of  the  court,  post,  §  2G7,  note. 
See  also  the  somewhat  similar  case 
of  Boyd  V.  Schneider,  (C.  C.  A.),  131 
Fed.  223,  reversing  124  Fed.  239,  and 
relying  on   the   author's   text,    §   245 

(suit  by  numerous  depositors  in 
bank  against  negligent  directors). 
In  Washington  County  v.  Williams, 
111  Fed.  801,  49  C.  C.  A.  621,  nu- 
merous separate  owners  of  a  certain 
issue  of  county  bonds  joined  in  a  suit 
to  have  their  validity  established  and 
a  part  payment  of  the  sums  due  on 
each  made  from  the  fund  in  the 
county  treasury.  It  was  held  in  the 
dissenting  opinion  of  Sanborn,  Cir.  J., 
that  since  the  "  only  point  of  litiga- 
tion is  a  common  one,"  viz.,  whether 
or  not  the  issue  of  the  bonds  was  au- 
thorized by  the  statutes  of  Nebraska, 
and  since  "  the  complainants'  rights 
and  causes  of  action  arise  from  a 
common  source  —  from  the  act  of  the 
county  in  issuing  the  bonds,  . 
involve  similar  facts  .  .  .  are 
governed  by  the  same  legal  rules  .  .  . 
the  case  falls  far  within  the  familiar 
rule  which  has  been  quoted  from 
Pomeroy;"  citing  the  text,  §§  245, 
255,  257,  268,  269,  273.  For  the  de- 
cision of  the  majority  of  the  court, 
distinguishing  the  case  from  the 
operation  of  the  principle,  see  post, 

S  267,  note. 


The  principle  of  the  "  third  class  " 
has  sometimes  been  invoked  in  sup- 
port of  a  suit  by  numerous  plaintiffs 
claiming  to  share  ratably  in  a  fund 
of  limited  amount;  Pennefeather  v. 
Baltimore  Steam  Packet  Co.,  58  Fed. 
481,  quoting  §  245  of  the  text.  But 
there  seems  to  be  here  some  miscon- 
ception as  to  the  particular  doctrine 
discussed  by  the  author.  It  is  true 
that  in  cases  like  the  one  last  men- 
tioned the  jurisdiction  depends  in 
part  upon  the  existence  of  several 
plaintiffs,  but  its  exercise  does  not 
depend  on  the  existence  in  favor  of 
each  plaintiff  of  the  same  question  of 
fact  or  of  law.  Each  plaintiff's  right 
may  be,  not  merely  distinct,  but  dif- 
ferent, and  require  a  separate  issue 
for  its  establishment.  Indeed,  the 
cases  in  question  present  little,  if  any, 
analogy  with  bills  of  peace.  The  juris- 
diction is  exercised  because  of  the 
difficulty  or  impossibility  of  effecting 
an  apportionment  of  the  fund  in  sepa- 
rate suits  at  law.  See  Snowden  v. 
General  Dispensary,  60  Md.  85.  Fa- 
miliar illustrations  are  found  in  suits 
by  creditors  of  a  corporation  to  en- 
force the  liability  of  the  directors  or 
stockholders  for  its  debts,  where  that 
liability  is  limited  in  amount,  and  is 
treated  as  a  fund  for  the  benefit  of 
all  the  creditors.  Bauer  v.  Piatt,  72 
Hun,  326,  25  N.  Y.  Supp.  426;  Pfohl 
v.  Simpson,  74  N.  Y.  137;  Barton 
Nat.  Bank  v.  Atkins,  72  Vt.  33,  47 
Atl.  176. 

II.  Joinder,  where  Each  of  the  Nu- 
merous Plaintiffs  has  an  Equitable 
Cause  of  Action. —  In  addition  to  the 
class  of  cases  described  above,  §  257, 
see  the  following  analogous  cases:  In 
the  states  where  the  illegality  of  a 
tax  clouding  the  plaintiff's  title  is  a 
ground  for  enjoining  its  collection  at  . 


§262 


EQUITY   JUKISPRUDENCE. 


416 


explained,  restricted,  and  limited  within  strict  and  narrow 
bounds.    I  shall  follow  the  same  order  as  before,  arranging 


the  suit  of  a  single  plaintiff,  owners 
of  separate  tracts  who  are  alike  af- 
fected by  the  illegality  may  unite  as 
plaintiffs:  Robbins  v.  Sand  Creek  T. 
Co.,  34  Ind.  461;  Brandriff  v.  Har- 
rison Co.,  50  Iowa,  164;  Thomas  v. 
Moore,  120  Mich.  535,  79  N.  W.  812; 
Bull  V.  Read,  13  Gratt.  79.  Numerous 
foreign  insurance  companies  affected 
by  the  act  of  the  insurance  commis- 
sioner in  threatening  to  revoke  their 
licenses  to  do  business  may  join  in 
an  action  for  an  injunction,  on  ac- 
count of  their  common  interest  in  the 
question  involved ;  Liverpool  &  L.  & 
G.  Ins.  Co.  V.  Clunie,  88  Fed.  160, 
167,  citing  this  chapter.  Several  per- 
sons who  by  the  same  fraudulent  mis- 
representations are  induced  to  sub- 
scribe for  stock  in  a  corporation  may 
join  in  an  action  to  set  aside  their 
subscriptions  and  recover  moneys 
paid  thereon;  Bosher  v.  Richmond 
H.  Land  Co.,  89  Va.  455,  37  Am.  St. 
Rep.  879,  16  S.  E.  360,  citing  §  269 
of  the  text;  Carey  v.  Coffee-Stemming 
Mach.  Co.  (Va.),  20  S.  E.  778,  cit- 
ing §  269  of  the  text;  so,  two  plain- 
tiffs who  were  induced  by  the  same 
fraud  to  sell  their  stock  may  join  in 
a  bill  to  rescind  the  sale;  Bradley  v. 
Bradley,  165  N.  Y.  183,  58  N.  E.  887; 
citing  this  chapter  and  many  cases. 
Joinder  of  plaintiffs  deriving  title 
from  a  common  source  in  a  suit  to 
quiet  title;  Prentice  v.  Duluth  Stor- 
age Co.,  58  Fed.  437;  or  to  remove 
a  cloud  on  their  title;  Dart  v.  Orme, 
41  Ga.  376.  Joinder  in  a  creditor's 
bill  of  plaintiffs  wlio  have  recovered 
separate  judgments  against  their 
common  debtor;  Slioldon  v.  Packet 
Co.,  8  Fed.  769  (Harlan,  J.)  ;  En- 
right  V.  Grant,  5  Utah,  334,  15  Pac. 
268,  citing  ncl.e  to  this  section.  Bill 
by  all   the  creditors  of  an  insolvent, 


or  some  in  behalf  of  the  rest,  to  en- 
force a  trust;  Libby  v.  Norris,  142 
Mass.  246,  7  N.  E.  919.  Bill  by  one 
bondholder  in  behalf  of  others  to  en- 
force a  trust  under  a  reorganization 
agreement;  Indiana,  I.  &  I.  R.  Co. 
V.  Swannell,  157  111.  616,  41  N.  E.  989, 
30  L.  R.  A.  290,  297,  citing  §  209  of 
the  text.  Stockholders  in  a  corpora- 
tion were  allowed  to  join  in  an  ac- 
tion for  equitable  relief,  where  the 
majority  were  pursuing  an  illegal 
course,  although  their  interests  in  the 
subject-matter  of  the  litigation  were 
separate,  and  not  joint;  Barr  v.  N. 
Y.,  etc.,  R.  R.  Co.,  96  N.  Y.  444.  One 
or  more  stockholders  of  a  mutual  in- 
surance company  may  on  behalf  of  all 
bring  a  suit  to  set  aside  the  appoint- 
ment of  an  assignee,  and  to  cancel 
assessments,  and  for  other  relief. 
Corey  v.  Sherman,  90  Iowa,  114,  64 
N.  W.  828,  32  L.  R.  A.  490,  509, 
quoting  §  269  of  the  text. 

Class  Fourth.  (I)  Cases  where  the 
Avoidance  of  a  Multiplicity  of  Suits 
Conferred  Jurisdiction  or  Warranted 
Its  Exercise. —  (a)  Injunction  against 
Numerous  Defendants  Prosecuting 
Suits  at  Law. —  Sundry  owners  of 
property  abutting  on  a  street  oc- 
cupied by  the  tracks  of  the  com- 
plainant railroad  brought  suits  at 
law  for  damages  resulting  to  them 
from  the  construction  and  operation 
of  the  railroad,  claiming  that  it 
was  a  mere  trespasser  in  the 
street.  The  complainant,  asserting 
ing  a  charter  from  the  state  to  occupy 
the  street,  brought  an  action  in  the 
nature  of  a  bill  of  peace  to  enjoin 
tliese  suits  and  determine  its  riglits; 
the  bill  was  uplield  on  tlie  ground  of 
avoiding  a  multiplicity  of  suits; 
Guess  v.  Stone  Mountain  I.  &  R.  Co., 
67  Oa.  215,  and  the  similar  case  of 


417 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


262 


all  the  cases  in  the  four  classes  described  in  a  preceding 
paragraph. 


South  Carolina  R.  Co.  v.  Stcimer,  44 
Ga.  546.  Illinois  Central  R.  Co.  v. 
Garrison,  81  Miss.  257,  32  South.  996, 
95  Am.  St.  Rep.  469,  appears  to  be  a 
case  of  the  same  general  character,  so 
far  aa  may  be  judged  from  the  im- 
perfect statement  of  facts.  Com- 
plainant claimed  the  right  to  over- 
flow, by  means  of  its  dam,  the  lands 
of  the  numerous  defendants,  under  a 
dedication  by  the  defendants'  prede- 
cessors in  title;  held,  that  it  might 
properly  bring  its  bill  to  establish 
this  right  and  enjoin  actions  at  law 
for  damages  brought  by  the  defend- 
ants, citing  the  text,  §  268 ;  Mayor 
of  York  V.  Pilkington,  1  Atk.  282, 
and  other  cases.  The  court  also  in- 
dicated that  it  was  the  proper  prac- 
tice in  such  cases  to  issue  a  tem- 
porary writ  enjoining  each  of  the  de- 
fendants from  further  prosecution  of 
his  action  at  law  during  the  pendency 
of  the  equitable  action.  "  No  consti- 
tutional rights  of  defendants  are 
taken  away  by  the  mere  postpone- 
ment of  their  actions  at  law ;  for  if 
plaintiff  is  herein  successful  they  are 
not  entitled  to  an  assessment  of  dam- 
ages, and  if  unsuccessful  the  actions 
at  law  will  duly  proceed;  "  City  of 
Albert  Lea  v.  Nielsen,  83  Minn.  246, 
86  N.  W.  83 ;  same  litigation.  City  of 
Albert  Lea  v.  Davies,  80  Minn.  101, 
81  Am.  St.  Rep.  242,  82  N.  W.  1104, 
and  State  v.  District  Judge,  85  Minn. 
215,  88  N.  W.  742.  The  receiver  of  a 
national  bank  brought  an  action  in 
the  nature  of  a  bill  of  peace  against 
numerous  holders  of  pass-books  is- 
sued by  a  savings  bank  in  the  name 
of  the  national  bank.  Several  of  the 
defendants  had  brought  suits  against 
the  plaintiff,  each  presenting  the  com- 
mon question  of  the  authority  of  the 
savings    bank    to    bind    the    national 

Vol.  1  —  27 


bank.  It  was  held  that  the  bill  of 
peace  was  properly  brought,  tliough 
the  defendants'  claims  each  arose 
from  an  entirely  separate  and  dis- 
tinct transaction ;  citing  the  text, 
§§  255,  209,  274,  and  reviewing  the 
New  York  cases ;  Kellogg  v.  Chenango 
Valley  Sav.  Bank,  42  N.  Y.  Supp. 
379,  11  App.  Div.  458.  See  also 
Smyth  V.  Ames,  169  U.  S.  466,  18 
Sup.  Ct.  418,  an  action  brought  by 
railroad  companies  to  test  the  valid- 
ity of  a  statute  regulating  rates, 
where  "  the  transactions  of  a  single 
week  would  expose  any  company 
questioning  the  validity  of  the  stat- 
ute to  a  vast  number  of  suits  by 
shippers,  to  say  nothing  of  the  heavy 
penalties  named  in  the  statute;  " 
Dinsmore  v.  Southern  Express  Co.,  92 
Fed.  714,  a  similar  case,  and  Haver- 
hill Gaslight  Co.  v.  Barker,  109  Fed. 
694,  injunction  against  state  officers 
fixing  rates  for  gas,  where  the  action 
of  the  officers  would  involve  the  plain- 
tiff in  a  multitude  of  suits  with  its 
customers;  Jordon  v.  Western  U.  T. 
Co.  (Kan.),  76  Pac.  396.  In  National 
Park  Bank  v.  Goddatd,  62  Hun,  31, 
16  N.  Y.  Supp.  343,  2  Ames  Cas.  Eq. 
Jur.  82;  affirmed,  131  N.  Y.  503,  30 
N.  E.  566,  1  Keener  Cas.  Eq.  Jur. 
142,  the  plaintiff,  claiming  a  lien  by 
attachment  on  a  stock  of  goods,  en- 
joined numerous  replevin  suits  sub- 
sequently brought  for  the  recovery  of 
difi'erent  portions  of  the  stock  by  nu- 
merous defendants,  jurisdiction  be- 
ing taken  on  the  ground  of  preventing 
a  multiplicity  of  suits. 

(b)  Injunction  against  Tax  Proceed- 
ings which  involve  the  single  plaintiff 
in  litigation  with  numerous  parties. 
The  situation  in  these  cases  is  the 
converse  of  that  described  in  §§  258- 
260,  supra.     Where  a  bank  or  other 


§263 


EQUITY    JURISPRUDENCE. 


418 


§  263.    In  the  First  and  Second  Classes. —  As  the  doctrine 
of  preventing  a  multiplicity  of  suits  has  been  finnly  estab- 


corporation  is  required  by  law  to  pay 
the  taxes  assessed  on  all  of  its  shares, 
and  reimburse  itself  by  withholding 
proportionate  parts  of  the  dividends 
from  its  shareholders,  it  may  enjoin 
an  illegal  tax,  since  its  payment 
thereof  would  subject  it  to  a  suit  by 
each  shareholder;  Cummings  v.  Mer- 
chants' Nat.  Bank,  101  U.  S.  153; 
followed  in  Hills  v.  National  Albany 
Exch.  Bank,  105  U.  S.  319,  5  Fed. 
248;  Albany  City  Nat.  Bank  v. 
Maher,  19  Blatchf.  184,  6  Fed,  417; 
Whitney  Nat.  Bank  v.  Parker,  41 
Fed.  402;  Third  Nat.  Bank  v.  Mylin, 
76  Fed.  385.  By  the  practice  in 
many  of  the  states,  taxes  on  railroad 
companies,  telegraph  companies,  and 
the  like  are  assessed  by  a  state  board 
on  all  the  property  of  the  company 
within  the  state,  and  proportionate 
parts  of  these  taxes  are  certified  for 
collection  to  the  tax  officials  of  the 
various,  counties  in  which  the  com- 
pany operates.  An  illegality  in  the 
assessment  by  the  state  board  may 
thus  expose  the  company  to  separate 
suits  in  many  counties,  and  has  fre- 
quently been  the  subject  of  an  in- 
junction on  the  ground  of  preventing 
a  multiplicity  of  suits:  Western 
Union  Tel.  Co.  v.  Poe,  61  Fed.  449, 
453,  by  Taft,  Cir.  J.;  Sanford  v. 
Poe,  69  Fed.  546,  548,  16  C.  C.  A. 
305,  60  L.  R.  A.  641;  Western  Union 
Tel.  Co.  v.  Norman,  77  Fed.  13,  21; 
Taylor  v.  Louisville  &  N.  R.  R. 
Co.,  88  Fed.  350,  (C.  C.  A.),  by 
Taft,  Cir.  J.;  Cliesapoake  &  0.  R.  R. 
Co.  V.  Miller,  19  W.  Va.  408.  See  also 
the  following  cases,  in  which  railroad 
companies  were  exposed  to  tax  suits 
in  difi"erent  counties,  all  involving  a 
coiiiiiiuii  fnu'Htion :  Union  Pac.  R.  R. 
Co.  V.  McShane,  3  Dill.  303,  Fed.  Cas. 
No.    14,.'582;    afTlrnicd,   22    Wall.   444; 


Union  Pac.  R.  R.  Co.  v.  Cheyenne,  113 
U.  S.  516,  5  Sup.  Ct.  601;  Northern 
Pac.  R.  R.  Co.  V.  Walker,  47  Fed. 
681  (quoting  §  274  of  the  textj  ; 
Mobile  &  0.  R.  R.  Co.  v.  Moseiey,  52 
Miss.  127,  137.  In  Pyle  v.  Bremie- 
man,  122  Fed.  787,  the  plaintiff,  in 
pursuit  of  his  legal  remedy,  would 
have  been  compelled  to  sue  a  number 
of  diflferent  municipalities  among 
whom  the  tax  collected  would  be  dis- 
tributed. 

(c)  Injunction  against  Numerous 
Attachments  or  Executions  on  prop- 
erty claimed  adversely  by  complain- 
ant. "  Where  several  executions  io 
favor  of  difi"erent  plaintiffs  have  been 
levied  on  the  same  property,  and  one 
person  has  filed  in  resistance  to  each 
levy  a  separate  claim,  and  the  claim 
cases  thus  made  are  pending  in  court, 
all  involving  the  same  question,  and 
it  being  one  upon  the  decision  of 
which  the  subjection  or  non-subjec- 
tion of  the  property  to  all  the  execu- 
tions depends,  an  equitable  petition^ 
will  lie  in  favor  of  the  claimant 
against  all  the  plaintiffs,  jointly,  to 
bring  to  trial  all  of  the  claims  to- 
gether, and  dispose  of  them  by  one 
verdict  and  judgment;"  Smith  v. 
Dobbins,  87  Ga.  303,  13  S.  E.  496,  re- 
lying on  §  269  of  the  text.  Similarly^ 
where  a  debtor  has  made  a  transfer 
of  his  property,  and  therciifter  suc- 
cessive attachments  are  levied  and 
threatened  thereon  by  his  creditors, 
each  claiming  that  the  transfer  was 
fraudulent,  tlie  transferee  may  main- 
tain an  action  against  all  of  the 
attaching  creditors  to  have  further 
attachments  enjoined  and  his  right 
to  the  property  determined;  Bishop 
V.  Roscnbaum,  58  Miss.  84  (though 
the  statute  provides  a  method  for 
third   persons   to  assert   their  claims 


419 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


§263 


lished  from  an  early  day,  with  respect  to  the  facts  and  cir- 
cumstances which  constitute  the  first  and  second  classes,, 


to  property  attached)  ;  Pollock  v. 
Okolona  Sav.  Inst.,  61  Miss.  293  (re- 
lying on  this  chapter)  ;  Lowenstein  v. 
Abramsohn,  76  Miss.  890,  25  South. 
498.  See  also  the  analogous  case  of 
National  Park  Bank  v.  Goddard,  62 
Hun,  31,  16  N.  Y.  Supp.  343,  2 
Ames  Cas.  Eq.  Jur.  82 ;  affirmed  in 
131  N.  Y.  503,  30  N.  E.  566,  1  Keener's 
Cas.  Eq.  Jur.  142;  and  Chase  v.  Can- 
non, 47  Fed.  674,  which  was  a  suit 
by  a  receiver  to  determine  what  liens 
by  garnishment  certain  creditors  had 
upon  property  he  was  suing  to  re- 
cover, there  being  a  question  of  law 
common  to  the  claim  of  each  defend- 
ant. 

(d)  Injunction  against  Numerous 
Trespassers  whore  the  relief  might 
not  be  granted  against  a  single 
defendant.  In  Stoekwell  v.  Fitzger- 
ald. 70  Vt.  468,  41  Atl.  504,  it  was 
held  that  equity  has  jurisdiction  of 
a  bill  to  maintain  a  right  of  way 
against  the  encroachments  of  several 
OAvners  who  have  distinct  interests  to 
avoid  a  multiplicity  of  suits.  "  Pro- 
ceedings at  law  might  result  in  his 
having  n''  passage-way,  although 
given  a  strip  two  rods  wide  as  against 
each  lot."  In  WoodruiBF  v.  North 
Bloomfield,  etc.,  Min.  Co.,  8  Saw.  628, 
the  conclusions  of  the  text  were  ex- 
pressly approved ;  this  was  an  action 
brought  by  a  riparian  proprietor  to 
restrain  a  large  number  of  mining 
companies  who  severally  owned  mines 
on  the  affluents  of  a  river,  which 
were  worked  independently  of  each 
other  by  the  hydraulic  process,  from 
discharging  their  waste,  earth,  and 
other  debris  into  the  affluents  of  the 
stream,  whence  it  flowed  down  into 
the  river,  to  the  injury  of  the  com- 
plainant. The  defendants  demurred 
to  the  bill,  on  the  express  ground  that 


the  complainant's  cause  of  action  was 
distinct  and  several  as  against  each 
of  the  defendants.  In  passing  on  the 
question  thus  raised,  SaAvyer,  C.  J., 
said :  "  I  also  think  this  bill  main- 
tainable against  all  the  defendants 
on  the  jurisdictional  ground  of  avoid- 
ing a  multiplicity  of  suits.  Tliere  is 
a  common  interest  —  a  common, 
though  not  joint,  right  claimed;  and 
the  action  on  the  part  of  all  the  de- 
fendants is  the  same  in  contribut- 
ing to  the  common  nuisance.  The- 
rights  of  all  involve  and  depend  upon 
identically  the  same  questions,  both 
of  law  and  fact.  It  is  one  of  the  class 
of  cases,  like  bills  of  peace  and  bills, 
founded  on  analogous  principles,, 
where  a  single  individual  may  bring- 
a  suit  against  numerous  defendants,, 
where  there  is  no  joint  interest  or 
title,  but  where  the  questions  at  issue 
and  the  evidence  to  establish  the 
rights  of  the  parties  and  the  relief 
demanded  are  identical.  Without 
analyzing  and  discussing  the  numer- 
ous cases  upon  the  subject  separately,, 
this  case  appears  to  me  to  be  clearly 
within  the  principle  stated  in  and  es- 
tablished by  the  following  authori- 
ties." The  learned  judge  then  cites 
Pomeroy's  Eq.  Jur.,  §§  256-269;  and 
Mayor  of  York  v.  Pilkington,  I  Atk. 
283;  Sheffield  W.  W.  v.  Yeomans,  L, 
R.  8  Ch.  8 ;  Ware  v.  Horwood,  14  Ves. 
28;  Supervisors  v.  Deyoe,  77  N.  Y. 
219;  Schuyler  Fraud  Cases,  17  N.  Y. 
592;  Cent.  P.  Co.  v.  Dyer,  I  Saw. 
650;  Gaines  v.  Chew,  2  How.  642  j 
and  Oliver  v.  Piatt,  3  How.  412. 

(e)  Cancellation. —  A  leading  cas* 
is  Town  of  Springport  v.  Teutonia 
Savings  Bank,  75  N.  Y.  397.  This 
was  a  suit  for  the  cancellation  of  cer- 
tain bonds  issued  by  the  plaintiff  and 
held   by   numero\is    defendants.     Ex- 


§263 


EQUITY   JUEISPRUDENCB. 


420 


there  are  no  decisions  which  positively  deny  the  jurisdiction 
or  the  propriety  of  its  exercise  in  cases  belonging  to  either 


trinsic  proof  would  be  required  to 
8ho\v  the  invalidity  of  the  bonds  in 
defense  to  a  suit  thereon,  but  that 
fact,  with  the  "  mere  ordinary  dan- 
ger of  losing  evidence "  would  not, 
according  to  the  rule  established  in 
Kew  York,  be  a  sufficient  ground  for 
their  cancellation.  Rapallo,  J.,  dis- 
tinguishing the  case  of  Town  of 
Venice  v.  Woodruff,  62  N.  Y.  462,  20 
Am.  Rep.  495,  says  (p.  402):  "It 
was  not  intended  to  be  denied  that 
in  the  case  of  instruments  creating  a 
prima  facie  liability,  and  requiring 
an  affirmative  defense,  to  be  sup- 
ported by  extrinsic  proof  of  facts,  the 
circumstance  that  they  were  held  by 
numerous  parties  who  might  bring 
numerous  suits  upon  them  in  different 
places,  might  under  some  circum- 
stances be  regarded  as  a  ground  for 
equitable  interposition,  even  though, 
if  there  were  but  a  single  claimant, 
equitable  relief  would  be  denied  and 
the  party  left  to  his  legal  defense, 
nor  that  where  a  party  was  subjected 
to  or  threatened  with  numerous  vex- 
atious actions,  equity  might  not  un- 
der proper  circumstances  restrain 
them."  In  the  similar  case  of  Farm- 
ington  Village  Corp.  v.  Sandy  River 
Xat.  Bank,  85  Me.  46,  26  Atl.  965, 
the  jurisdiction  was  fully  recognized 
but  its  exercise  declined  on  the 
ground  that  no  vexatious  litigation 
appeared  to  be  threatened.  See  also 
Brown  v.  Trousdale,  138  U.  S.  389, 
11  Sup.  Ct.  308.  In  Louisville 
N.  A.  &  C.  R.  Co.  V.  Ohio  Val.  I. 
4  C.  Co.,  57  Fed.  42,  45,  the  plaintiflF 
sued  for  the  cancellation  of  its  guar- 
anty which  had  been  indorsed  upon 
several  hundred  bonds  issued  by  an- 
other company  illegally  and  fraudu- 
lently. The  court  was  of  the  opinion 
that   there   was   an   adequate   defense 


at  law  to  a  suit  upon  each  bond,  con- 
sidered by  itself,  but  that  the  multi- 
plicity of  suits  threatened,  and  the 
common  question  involved  of  the 
validity  of  the  guaranties  and  of  the 
contract  in  pursuance  of  which  they 
were  made,  rendered  the  case  one  for 
the  exercise  of  its  jurisdiction;  quot- 
ing §  209  of  the  text,  and  citing 
Railway  Co.  v.  Schuyler,  17  N.  Y. 
592 ;  Supervisors  v.  Deyoe,  77  N.  Y. 
219;  Waterworks  v.  Yeomans,  L.  R. 
2  Ch.  App.  11.  Tills  case  was  dis- 
tinguished in  Scott  v.  McFarland,  70 
Fed.  280,  where  the  numerous  instru- 
ments sought  to  be  canceled  were  ob- 
tained by  distinct  and  separate  acts 
of  fraud,  presenting  no  common  ques- 
tion for  decision. 

(f)  Quieting  lule,  etc.,  against  Nu- 
merous Defendants. —  The  doctrine  is 
applicable  to  a  suit  by  an  equitable 
owner  of  a  large  tract  of  land,  to  en- 
force and  declare  a  trust  against  a 
large  number  of  defendants,  each 
claiming  a  distinct  portion  of  the 
land,  but  under  one  fraudulent  title: 
Dodge  v.  Briggs,  27  Fed.  160; 
and  to  an  action  to  quiet  title, 
brought  by  a  person  claiming  title  to 
a  single  piece  of  mining  property, 
against  numerous  defendants,  each  of 
whom  separately  claims  a  distinct 
portion  of  the  property,  but  all  of 
whose  claims  are  similar  in  origin, 
and  the  determination  of  which  de- 
pends upon,  similar  rules  of  law: 
Hyman  v.  Wheeler,  33  Fed.  630; 
and  to  an  action  brought  by  a  land- 
owner against  a  large  number  of  de- 
fendants, each  claiming  a  separate 
portion  of  the  land  under  a  void  sale 
thereof  made  under  the  same  order 
of  court:  De  Forest  v.  Thompson, 
40  Fed.  375,  citing  this  chapter. 
See    also    Preteca    v.    Maxwell    Land 


421 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


263 


of  them.    The  instances  are  few  in  which  even  any  special 
or  additional  limitation  has  been  placed  upon  the  operation 


Grant  Co.,  (C.  C.  A.),  50  Fed.  674, 
citing  this  chapter;  Lasher  v.  Mc- 
Creery,  66  Fed.  834,  843,  citing 
§  245,  supra;  Waddingham  v.  Rob- 
ledo,  6  N.  M.  347,  28  Pac.  663.  In 
all  these  cases  the  jurisdiction  was 
placed  wholly  or  partly  on  the  ground 
of  avoiding  a  multiplicity  of  suits. 
A  similar  action  has  been  sustained 
to  settle  disputed  boundaries  by  one 
plaintiff  against  numerous  defend- 
ants, owners  in  severalty  of  a  certain 
tract  of  land,  the  boundaries  of  which, 
through  the  lapse  of  time,  the  care- 
lessness of  occupants,  and  the  ab- 
sence of  natural  monuments,  had  be- 
come confused  and  uncertain :  Beatty 
V.  DixoUj  56  Cal.  622.  In  this  case 
the  avoidance  of  a  multiplicity  of 
suits  was  decisive  in  favor  of  the 
jurisdiction.  Central  Pacific  R.  Co. 
v.  Dyer,  1  Saw.  641,  Fed.  Cas. 
No.  2,552,  was  a  statutory  suit  to 
quiet  title  against  numerous  defend- 
ants. By  Mr.  Justice  Field:  "The 
jurisdiction  would,  therefore,  exist  in 
the  present  case  if  there  were  only 
one  defendant  asserting  an  interest 
or  estate  adverse  to  the  plaintiff,  but 
the  fact  that  there  are  numerous  de- 
fendants claiming  distinct  and  sepa- 
rate parcels  by  a  similar  title,  and 
threatening  distinct  actions  for  in- 
juries to  their  respective  parcels,  fur- 
nishes a  further  ground  for  enter- 
taining the  bill.  A  court  of  equity 
will  always  interfere  to  prevent  a 
multiplicity  of  suits,  where  the  rights 
of  the  parties  can  be  fairly  deter- 
mined by  a  single  proceeding."  Cit- 
ing Crews  V.  Burchara,  1  Black,  352; 
Mayor  of  York  v.  Pilkington,  1  Atk. 
282 ;  and  Gaines  v.  Chew,  2  How.  640. 
See  also  Ellis  v.  Northern  Pac.  R. 
Co.,  77  Wis.  114,  45  N.  W.  811,  where 
defendants    deriving   title    from     dif- 


ferent sources  were  joined  by  a  plain- 
tiff seeking  to  quiet  his  title. 

(g)  Recovery  of  Specific  Chattels. — 
One  of  the  earliest  of  the  Ameri- 
can cases,  and  one  of  the  most 
striking  illustrations  to  be  found 
in  the  books,  is  that  of  Vann  v.  Har- 
gett,  22  N.  C.  (2  Dev.  &  B.  Eq.) 
31,  32  Am.  Dec.  689  (1838).  The  bill 
alleged  that  the  plaintiffs  were  own- 
ers of  a  remainder  interest  in  certain 
slaves;  that  the  life  tenant  had  sold 
them,  and  that  the  numerous  defend- 
ants had  possession  of  some  of  the 
issue  of  the  slaves,  asserting  an  abso- 
lute title  therein.  The  prayer  was 
that  the  defendants  might  surrender 
the  slaves  or  account  for  their  value, 
if  they  had  been  sold.  The  case,, 
therefore,  presents  a  clear  illustra- 
tion of  the  "  concurrent  jurisdiction  " 
as  defined  by  the  author,  the  relief 
demanded  being  purely  legal  in  its 
nature.  The  defendants  demurred  on 
the  ground  that  the  plaintiffs  had  a 
remedy  at  law  by  action  of  trover  or 
detinue,  and  on  the  ground  of  multi- 
fariousness. The  opinion  of  Daniel, 
J.,  states  the  doctrine  with  admirable 
clearness.  He  says,  in  part :  "  The 
title  of  the  plaintiffs  seems  to  be  ad- 
mitted on  both  sides  to  be  a  legal 
title;  we  also  think  it  is  a  legal  title. 
But  if  the  plaintiffs  could  by  any  pos- 
sibility recover  at  law,  that  is  not  a 
reason  sufficient,  in  a  case  like  the 
one  disclosed  by  this  bill,  why  they 
may  not  also  proceed  in  equity.  The 
plaintiffs  claim  by,  and  seek  to  es- 
tablish in  themselves,  one  legal  title 
to  the  slaves,  as  against  each  and  all 
the  numerous  defendants  now  hold- 
ing the  same.  .  .  .  Lord  Redes- 
dale  says,  courts  of  equity  will  take 
take  jurisdiction  and  prevent  mul- 
tiplicity  of   suits   at  law.      And   the 


,f  263 


EQUITY   JUEISPRUDBNCB. 


422 


Nof  the  doctrine^  other  than  what  is  contained  in  the  general 
Tule  itself  defining  its  operation,  which  was  stated  in  a  for- 


•cases   in  which   it  is  attempted,  and 
the  means  used  for  that  purpose,  are 
various.     With  this  view,  where  one 
general  legal  right  is  claimed  against 
several    distinct   persons,   a   bill   may 
be    brought    to    establish    the    right. 
Mitford's      Pleadings,       145."       The 
judge  there  states  the  case  of  Mayor 
■of    York   V.    Pilkington,    1    Atk.    282 
("The  Case  of  the   Fisheries,"  ante, 
§    256),    and    the    defendant's    argu- 
ment, that  there  jurisdiction  existed 
against  each  defendant  on  the  ground 
of   continuous    trespass,    and   that   it 
was  merely  decided  that  the  numer- 
ous defendants,  each  of  whom  might 
liave     been     separately     pursued     in 
•equity,  were  properly  joined  in  a  sin- 
:gle   suit.     The   court  replies:      "The 
answer  which   we  give  to  this  argu- 
'ment   is,    that   the    case    put   by   the 
-counsel  is  but  one  among  many  where 
•equity    will    interfere    to    prevent    a 
"multiplicity    of    suits    at    law.      The 
•cases  in   which  it  is   attempted,  and 
'the    means    for    that    purpose,    '  are 
•various,'  says  Loud  Redesdale.     The 
■  case  in  Atkins  is  put  as  one  among 
many    in    illustration    of    this    rule. 
The   object   of   a   court   of   equity   in 
entertaining  such  a  bill,  is  to  prevent 
multiplicity  of   suits   at  law  by  de- 
termining the  rights  of  parties  upon 
issues  directed  by  the  court,  if  neces- 
«ary,   for   its   information,   instead  of 
BufTering  the  parties   to  be   harassed 
by    a    number   of    separate   suits,    in 
which    each    suit    would    only    deter- 
mine   the    particular    right    in    ques- 
tion   between    the    plaintiff    and    the 
defendant    in    it.      The    notion,    that 
equity    interposes   only   to   prevent   a 
multiplicity  of  actions,  totie.t  quotiea 
as    the   trespasses    are    committed,    is 
answered  again  by  stating,  that  such 
itt  bill  can  scarcely  be  sustained  where 


a  right  is  disputed  between  two  per- 
sons only,  until  the  right  has  been 
tried  and  decided  at  law.  Mitford, 
146."  In  other  words,  the  defend- 
ants' counsel  was  mistaken  in  his 
assumption  that  in  the  "  Case  of  the 
Fisheries "  the  court  would  have 
taken  jurisdiction  of  a  bill  against 
each  of  the  defendants  separately. 
On  the  question  of  multifariousness 
the  court  says :  "  The  court  will 
not  permit  a  plaintiff  to  demand  by 
one  bill  several  matters  of  different 
natures  against  several  defendants ; 
for  this  would  tend  to  load  each  de- 
fendant with  an  unnecessary  burthen 
of  cost,  by  swelling  the  pleadings 
with  the  state  of  the  several  claims 
of  the  other  defendants,  with  which 
he  has  no  connexion.  But  a  de- 
murrer of  this  kind  would  hold  only 
when  the  plaintiffs  claim  several 
matters  of  different  natures.  But 
wlien  one  general  right  is  claimed 
by  the  bill,  though  the  defendants 
have  separate  and  distinct  rights,  a 
demurrer  will  not  hold." 

(h)  Pecuniary  Relief  against  Nu- 
merous Defendants. —  The  opinion  in 
Bailey  v.  Tillinghast,  99  Fed.  801, 
806,  807  (C.  C.  A.),  is  very  in- 
structive. This  was  a  suit  in  equity 
by  the  receiver  of  a  national  bank 
against  forty-six  stockholders,  for 
the  purpose  of  recovering  an  assess- 
ment of  $61  per  share  levied  by  the 
comptroller  of  the  currency  iipon 
their  personal  liability  on  accoxmt  of 
the  stock  held  by  them.  By  Sev- 
erens,  D.  J. :  "  We  are  clearly  of 
opinion  that  the  bill  should  be  main- 
tained for  the  purpose  of  avoiding  a 
multiplicity  of  suits.     .  There 

is  a  common  question  in  the  case  be- 
tween the  receiver  and  the  defend- 
ants,   namely,    the   question    whether 


423 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


263 


mer  paragraph;^  namely,  that  if  the  plaintiff's  right,  in- 
terest, or  estate  in  the  subject-matter  is  contested,  he  is  gen- 


1  See  ante,  §  252. 

the  latter  were  released  from  their 
stock  subscription  by  the  fact  that, 
whereas  the  resolution  for  increas- 
ing the  stock  in  the  sum  of  $300,000 
was  that  under  which  their  subscrip- 
tion took  place,  yet  subsequently  by 
proceedings  to  which  they  did  not 
consent,  the  proposed  increase  was 
reduced  to  $150,000.  .  .  .  And 
these  circumstances,  namely,  the 
great  number  of  the  parties  on  one 
side  or  the  other,  the  identity  of 
the  question  of  law,  and  the  similar- 
ity of  facts  in  the  several  contro- 
versies between  the  respective  par- 
ties, are  the  basis  on  which  the  juris- 
diction rests.  The  object  is  to 
minimize  litigation,  not  only  in  the 
interest  of  the  public,  but  also  for 
the  convenience  and  advantage  of  the 
parties.  If  the  receiver  was  com- 
pelled to  bring  separate  suits,  it 
would  entail  a  vast  expense  upon  the 
fund  in  trying  over  and  over  again 
the  identical  questions  of  law  and 
fact  with  each  stockholder,  and  with 
no  substantial  advantage  to  him,  but 
injury,  rather,  in  the  increased  cost 
in  the  immediate  suit,  and  the  larger 
burden  upon  the  fvmd,  created  by  the 
many  suits  against  the  others.  Nor 
is  it  necessary,  as  counsel  seem  to 
suppose,  that  there  should  be  any 
privity  of  interest  between  the  stock- 
holders, other  than  that  in  the  ques- 
tion involved  and  the  kind  of  relief 
sought,  the  right  of  their  claims  be- 
ing common  to  them  all,  in  order  to 
bring  the  case  within  the  jurisdic- 
tion [citing  several  of  the  cases  men- 
tioned in  this  chapter].  It  is  true 
there  are  occasional  cases  where  it 
seems  to  have  been  supposed  that 
there  must  be  some  community  of 
interest,  —  some  tie  between   the   in- 


dividuals who  make  up  the  great 
number;  but  the  great  weight  of  au- 
thority is  to  the  contrary,  and  there 
is  a  multitude  of  cases  which  either 
in  terms  deny  the  necessity  of  such 
a  fact  or  ignore  it  by  granting  relief 
where  the  fact  did  not  exist.  And, 
indeed,  it  is  difficult  to  find  any  rea- 
son why  it  should  be  thought  neces- 
sary. It  has  no  relevancy  to  tJie 
principle  or  purpose  of  the  doctrine 
itself,  which  stands  not  merely  as  a 
makeweight  when  other  equities  are 
present,  but  as  an  independent  and 
substantive  ground  of  jurisdiction." 
See  also  New  York  Life  Ins.  Co.  v. 
Beard,  80  Fed.  66;  Wyman  v.  Bow- 
man, 127  Fed.  257,  262-265;  Boyd  v. 
Schneider,  (C.  C.  A.),  131  Fed.  223, 
reversing  124  Fed.  239,  and  relying 
on  author's  text,  §  245  (suit  by  de- 
positors in  bank  against  negligent 
bank  directors).  For  limitations  on 
the  jurisdiction  in  cases  of  this  char- 
acter, see  Hale  v.  Allinson,  188  U.  S. 
56,  23  Sup.  Ct.  244,  ante,  §  2511/2. 

(II)  Joinder  of  Numerous  Defend- 
ants against  Each  of  Whom  the 
Plaintiff  has  a  Similar  Cause  of  Ac- 
tion for  Equitable  Relief. — It  has  been 
frequently  held  that  a  riparian  pro- 
prietor may  restrain  several  tort 
feasors  from  diverting  or  polluting 
the  waters  of  a  stream,  although 
they  were  not  acting  in  Tinity 
of  design  or  with  concert  of  action; 
Woodruff  V.  North  Bloomfield  G.  M. 
Co.,  8  Saw.  628,  16  Fed.  25,  cit- 
ing this  chapter;  Union  Mill  &  M. 
Co.  V.  Dangberg,  81  Fed.  73,  88; 
Lockwood  Co.  v.  Lawrence,  77  Me. 
297,  52  Am.  Rep.  763,  quoting  §  269 
of  the  text;  Miller  v.  Highland  Ditch 
Co.,  87  Cal.  430,  22  Am.  St.  Rep.  254, 
25  Pac.  550;   Hillman  v.  Newington, 


§263 


EQUITY  JUEISPEUDENCE. 


424 


erally  required  to  establish  it  by  an  action  at  law,  before  he 
can  invoke  the  aid  of  equity.    As  most  of  these  cases  have 


57  Cal,  56;  Draper  v.  Brown,  115 
Wis.  301,  91  N.  W.  1001;  Graham 
V.  Dahlonega  Co.,  71  Ga.  296.  So 
a  riparian  proprietor  on  a  private 
stream  could  maintain  a  single  ac- 
tion against  several  defendants,  each 
of  whom  acted  independently  of  the 
others,  but  who  claimed  a  common 
right  to  float  logs  down  the  stream, 
to  restrain  them  from  so  doing,  and 
to  quiet  hia  title  as  against  all  the 
defendants;  Meyer  v,  Phillips,  97 
N.  Y.  485,  49  Am.  Rep.  538.  On 
the  same  principle  an  injunction 
has  been  granted  in  a  suit  by 
the  owner  of  a  large  body  of  land, 
valuable  only  for  its  pasturage  rights 
and  privileges,  to  protect  that  right 
from  use  by  cattle  and  stock-owners, 
neighbors  of  the  land  of  complain- 
ant, under  authority  of  an  unconsti- 
tutional statute;  Smith  v.  Bivens, 
56  Fed.  352,  2  Ames  Cas.  Eq.  Jur. 
62;  and  in  a  suit  by  a  railroad 
company  to  restrain  numerous  ticket 
"  scalpers  "  or  brokers  from  purchas- 
ing and  reselling  partly  used  tickets 
which  by  their  terms  were  non-trans- 
ferable; Nashville,  C.  &  St.  L.  R. 
Co.  V.  M'Connell,  82  Fed.  65,  75, 
citing  this  chapter.  In  the  three 
cases  last  cited  it  does  not  clearly 
appear  that  an  injunction  would 
have  been  granted  against  a  single 
defendant;  these  cases  may,  there- 
fore, be  authority  on  the  question  of 
jurisdiction  as  well  as  of  joinder. 
In  a  suit  by  a  railroad  company  to 
protect  its  right  of  way  against  nu- 
merous land-owners  who  interfere 
with  and  deny  its  right,  they  may 
all  be  joined,  when  there  is  only  one 
question  to  be  settled.  Louisville  & 
N.  R.  Co.  V.  Smith  (C.  C.  A.),  128 
Fed.  1,  6,  citing  this  chapter. 

It  is  well  settled  that  a  creditor'a 
bill   may  be  maintained  against  sev- 


eral defendants,  although  they  are 
not  united  in  interest,  to  reach  asset* 
of  the  debtor  in  their  several  pos- 
session: Sheldon  v.  Packet  Co.,  8 
Fed.  769  (Harlan,  J.);  Hayden 
v.  Thrasher,  18  Fla.  795;  Robin- 
son V.  Springfield  Co.,  21  Fla.  203, 
238;  Bobb  v.  Bobb,  76  Mo.  419; 
Rinehart  v.  Long,  95  Mo.  396,  8^ 
S.  W.  559;  Parish  v.  Sloan,  3  Ired. 
Eq.  (N.  C.)  611.  On  the  same- 
principle  the  stockholders  in  a  cor- 
poration may  join  in  a  single  suit 
the  grantees  in  distinct  conveyance* 
of  the  corporate  property  which 
they  seek  to  cancel  because  made 
under  an  invalid  resolution  of  the- 
directors;  Hardie  v.  Bulger,  66  Miss. 
577,  6  South.  186.  And  an  as- 
signee in  bankrutpcy  may  file  his 
bill  against  all  the  incumbrancers- 
of  the  bankrupt's  property  to  ascer- 
tain the  validity,  priority,  and 
amount  of  the  incumbrances;  Mc- 
Lean v.  Lafayette  Bank,  3  McLean, 
415,  419,  Fed.  Cas.  No.  8,886.  In 
the  last  case  it  was  distinctly  held 
by  Mr.  Justice  McLean  that  privity 
among  the  parties  plaintiff  or  de- 
fendant is  not  necessary  in  a  bill  of 
peace,  and  it  was  pointed  out  that 
Dilly  v.  Doig,  2  Ves.  Jr.  486,  is 
wholly  irreconcilable  with  the  lead- 
ing case  of  Mayor  of  York  v.  Pil- 
kington,  1  Atk.  282  ("The  Case  of 
the  Fisheries,"  ante,  §  256).  Equity 
has  jurisdiction,  partly  on  the  ground 
of  preventing  a  multiplicity  of  suits, 
of  a  suit  by  the  receiver  of  an  in- 
solvent national  bank  against  all  its 
shareholders  to  recover  dividends 
that  have  been  unlawfully  paid  to 
them  out  of  the  capital  of  the  bank 
at  a  time  when  the  bank  was  insol- 
vent. Hayden  v.  Thompson,  17  C, 
C.  A.  592,  71  Fed.  60,  36  U.  S.  App. 
361. 


425  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  263 

already  been  cited  in  connection  with  the  foregoing  affirma- 
tive discussion,  I  shall  simply  collect  them  here  in  the  foot- 
note.^ 

2Hughlett  V.  Harris,  1  Del.  Ch.  349,  352,  12  Am.  Dec.  104;  Richmond  v. 
Dubuque,  etc.,  R.  R.  Co.,  33  Iowa,  422,  487,  488;  Eastman  v.  Amoskeag,  etc.,. 
Co.,  47  N.  H.  71,  79,  80;  Eldridge  v.  Hill,  2  Johns.  Ch.  281;  West  v.  Mayor, 
etc.,  of  N.  Y.,  10  Paige,  539.  For  the  facts  and  particular  points  decided 
in  these  cases,  see  ante,  in  notes  under  §§  252,  253,  and  254.  Richmond  v. 
Dubuque,  etc.,  R.  R.  Co.,  33  Iowa,  422,  487,  488,  contains  the  following  dictum 
by  Beck,  C.  J. :  "  It  is  said  that  equity  will  take  jurisdiction  of  this  case 
in  order  to  avoid  a  multiplicity  of  suits  between  the  parties.  This  is  some- 
times a  ground  for  the  exercise  of  chancery  powers,  but  it  is  not  of  such  con- 
trolling nature  as  to  require  the  jurisdiction  to  be  assumed  even  though  other 
equitable  principles  are  disregarded.  The  rule  relied  on  is  usually  applied 
in  cases  where  chancery  has  jurisdiction,  for  a  proper  purpose,  of  a  subject- 
matter  out  of  which  grow  other  questions  requiring  adjudication.  In  such 
cases  the  parties  will  not  be  turned  over  to  the  law  court  which  has  cognizance 
of  the  matter,  but  it  will  be  retained,  that  all  rights  relating  thereto  may  be 
settled:  1  Story's  Eq.  Jur.,  §§  64-67.  We  do  not  understand  the  mere  fact 
that  there  exist  divers  causes  of  action,  which  may  be  the  foundation  of  as 
many  different  suits  between  the  parties  thereto,  is  a  ground  upon  which 
equity  may  be  called  upon  to  assume  jurisdiction,  and  settle  all  such  mat- 
ters in  one  suit.  The  case  would  not  be  different  if  some  of  the  causes  of 
action  were  not  matured.  We  have  never  heard  it  claimed  that  equity  will 
entertain  an  action  upon  a  contract  requiring  the  payment  of  money  daily, 
monthly,  or  yearly.  Yet  in  such  a  case  an  action  would  accrue  at  each  of 
such  periods,  and  there  would  thus  be -prospectively  a  great  multiplicity  of 
actions.  In  the  case  before  us,  admitting  the  contract  to  be  divisible,  and 
that  an  action  may  be  maintained  upon  every  breach,  this  is  no  ground  for 
interference  by  a  court  of  chancery.  If  the  contract  be  divisible,  and  the 
plaintiff  has  a  right  of  action  thereon  to  recover  money  accruing  every  day, 
equity  cannot  take  the  right  from  him,  and  substitute  a  remedy  which  will 
award  him  damages  in  gross  for  the  whole  amount  which  he  may  ultimately 
recover."  This  case  was  an  equitable  action  to  compel  the  specific  perform- 
ance of  a  long  and  complicated  agreement,  extending  in  its  operation  over 
several  years,  and  containing  numerous  provisions,  but  relating  wholly  to 
personal  services  and  personal  property.  The  plaintiff  claimed,  among  other 
arguments,  that  equity  had  jurisdiction  to  prevent  a  multiplicity  of  suits, 
since  from  the  continuous  nature  of  the  agreement,  and  the  number  and 
variety  of  its  provisions,  there  would  be  many  breaches,  and  consequently 
many  actions  at  law  to  recover  damages.  The  decision  that  such  a  case  does 
not  come  within  the  doctrine  as  to  preventing  a  multiplicity  of  suits,  since 
the  plaintiff's  remedy  at  law  is  adequate,  simple,  and  certain,  is  plainly  cor- 
rect. The  correctness  of  the  learned  judge's  remarks  concerning  the  origin 
and  nature  of  the  jurisdiction  in  general  to  prevent  a  multiplicity  of  suits  is 
much  more  doubtful.* 

i»)  In  Attorney-General  v.  Board  multiplicity  of  suits  was  no  ground 
of  Education  (Mich.),  95  N.  W.  746,  for  injunction  against  the  breach  of 
it  was  held  that  the  avoidance  of  a       a  continuing  contract  when  tiie  plain- 


§264  EQUITY    JUIIISPRUDENCB.  426 

§  264.  In  the  Third  and  Fourth  Classes.* —  I  pass,  then,  to 
the  denial  or  the  restrictions  and  limitations  of  the  doctrine 
in  its  application  to  cases  of  the  third  and  fourth  classes. 
There  are  instances  of  such  absolute  denial,  or  of  stringent 
limitations,  in  suits  brought  by  a  number  of  persons  to  es- 
tablish some  individual  but  common  right  existing  on  behalf 
of  each  and  all,  against  a  single  wrong-doer  or  trespasser ; 
or  brought  by  a  single  plaintiff  to  restrain  a  number  of  si- 
multaneous actions  commenced  against  him  by  different  per- 
sons, upon  tlie  allegation  that  they  all  involved  similar  facts, 
and  depended  upon  the  same  questions  of  law,  and  therefore 
had  a  common  nature.  In  these  cases  the  jurisdiction  was 
denied,  on  the  ground  that  there  was  no  privity  or  legal  re- 
lation or  community  of  interest  and  right  among  the  indi- 
viduals of  the  numerous  body,  which,  it  was  held,  must  exist 
in  order  that  a  court  of  equity  may  interfere,  under  such 
circumstances,  for  the  purpose  of  preventing  a  multiplicity 
of  suits.^  ^    My  critical  examination  of  these  cases  is  placed 

1  County  of  Lapeer  v.  Hart,  Harr.  (Mich.)  157;  Marselis  v.  Morris  Canal 
Co.,  1  N.  J.  Eq.  31,  35-39.  In  County  of  Lapeer  v.  Hart,  Harr.  (Mich.)  157, 
sixty-seven  actions  at  law  had  been  begun,  against  the  county  supervisors 
on  certain  drafts  or  orders  for  the  payment  of  money  in  various  sums  issued 
by  them,  and  owned  by  the  respective  plaintiffs  in  said  actions,  individually. 
These  orders  had  all  been  issued  by  the  supervisors  in  pursuance  of  the  same 
supposed  authority,  and  in  the  same  proceeding.  An  action  was  brought 
by  each  holder  to  recover  the  amount  of  his  order.  Whatever  defense  the 
county  had  in  each  action  was  wholly  legal.  The  county  thereupon  filed 
this  bill  in  equity  against  all  the  holders  of  said  orders,  seeking  to  restrain 
their  actions  at  law,  and  to  have  the  orders  declared  void,  etc.  It  was  held 
that  no  such  suit  could  be  maintained  by  the  county,  since  there  was  no 
common   interest  among  the  order   holders  j    it  was  not  a  case  which   came 

tiflf  might  wait  until  the  term  of  the  more  or  less  emphasis;   but  most  of 

contract  had  expired  and  then  bring  them    are    distinguishable    as    cases 

a  single  action  at  law.  where    the    exercise    of    the    jurisdic- 

(a)  Sections   204  209   are  cited   in  tion    was    imncccssary,   or   would   be 

American   Cent.   Ins.   Co.   v.   Landau,  incH'octual.      Swift    v.    Larrabee,    31 

66  N.  J.  Eq.  513,  39  Atl.  400,  a  case  Conn.  225,  239    (dictum)  ;   Equitable 

recognizing      the      author's      "third  Cuarantee,     etc.,     Co.     v.     Donahoe 

class."  (Del.),  45  Atl.  583;  Doggett  v.  Hart, 

{],)  Cases  of  the  Fourth  Class  De-  5  Fla.  215,  58  Am.  Dec.  404;  Hughes 

nying  the  Jurisdiction. —  The  follow-  v.    Hannah,    39    Fla.    305,    22    South. 

ing  caaca  deny   the  juiisdictiou   with  C13     (bill    of    peace    does    not   lie    to 


427  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  264 

in  the  foot-note,  where  it  is  shown  that  with  respect  to  their 
material  facts  they  are  clearly  distinguishable  from  all  those 
adjudications,  quoted  under  the  foregoing  paragraphs,  by 
which  the  jurisdiction  has  been  asserted  and  exercised,  so 

within  the  principle  of  a  "  bill  of  peace,"  or  of  preventing  a  multiplicity  of 
suits.  The  opinion  in  Marselis  v.  Morris  Canal  Co.,  1  1^1.  J.  Eq.  31,  is  one  of 
the  most  carefully  considered  and  elaborate  presentations  of  this  restricted 
and  negative  view  of  the  doctrine  to  be  found  in  the  reports,  and  I  shall 
therefore  quote  from  it  at  some  length.  Many  separate  owners  of  distinct 
tracts  of  land  along  the  line  of  the  defendant's  canal  united  as  plaintili's, 
suing  on  behalf  of  themselves  and  all  others,  etc.,  charging  that  the  defendant 
entered  on  their  separate  parcels  of  land  and  dug  a  canal,  without  permission 
or  agreement,  and  without  making  any  compensation;  that  defendant  was  in- 
solvent. Tliey  prayed  an  account  of  damages  for  the  injuries  done,  com- 
pensation for  the  lands  taken,  and  an  injunction  to  restrain  the  defendant 
from  occupying  or  using  their  lands  without  compensation.  Defendant  de- 
murred to  the  whole  bill,  and  plaintiffs  moved  for  a  preliminary  injunction, 
and  the  argument  of  both  came  on  together.  The  chancellor  said  ( pp.  35-39 )  : 
"  The  complainants  are  several  owners  having  distinct  rights  in  the  several 
tracts  of  land  through  which  the  canal  passes.  The  injuries  sustained  by  one 
of  them  have  no  necessary  nor  natural  connection  with  those  sustained  by 
another.  Admitting  the  jurisdiction  of  the  court,  each  of  these  complainants 
might  sue  separately,  either  in  a  court  of  law  or  of  equity,  without  consult- 
ing Avith  any  other  onCj  and  without  in  the  least  degree  affecting  his  rights. 
On  the  other  hand,  the  suit  is  brought  by  all  of  them  against  one  common 
defendant.  They  all  complain  of  injuries  similar  in  their  character,  and 
seek  a  similar  relief,  and  therefore  have  a  common  object  in  view.  Com- 
plainants allege  that  the  suit  is  brought  for  tlie  benefit  of  all  land-owners  who 
will  come  in  and  contribute.  Such  is  the  complainants'  case.  Let  us  ex- 
quiet  title  against  numerous  defend-  pra,  the  court  refused  to  take  juria- 
ants  in  possession)  ;  Peninsula  Const.  diction  to  enjoin  several  attachments 
Co.  v.  Merritt,  90  Md.  589,  45  Atl.  on  goods  claimed  by  the  plaintiff,  who 
172;  Zahnhizer  v.  Hefner,  47  W.  Va.  was  not  a  party  to  the  attachment 
418,  35  S.  E.  4;  Tribette  v.  Illinois  suits.  The  decision  is  partly  rested, 
Cent.  R.  Co.,  70  Miss.  182,  12  however,  on  the  adequacy  of  the  stat- 
South.  32,  19  L.  R.  A.  660,  35  Am.  utory  remedy  by  which  the  plaintiff 
St.  Rep.  642,  1  Keener  Cas.  Eq.  Jur.  might  reclaim  his  property.  In  other 
148,  2  Ames  Cas.  Eq.  Jur.  74;  Duck-  West  Virginia  cases  the  jurisdiction 
town,  etc.,  Co.  v.  Fain,  109  Tenn.  56,  as  contended  for  by  the  author  has 
70  S.  W.  813.  In  Peninsula  Const.  Co.  been  fully  recognized.  In  Equitable 
V.  Merritt,  supra,  it  was  held  that  Guarantee,  etc.,  Co.  v.  Donahoe,  sii- 
equity  would  not  take  jurisdiction  pra,  a  case  of  the  fourth  class,  the 
to  enjoin  numerous  garnishment  pro-  jurisdiction  was  invoked  to  rest)'ain 
ceedings  against  the  complainant,  to  taxation;  for  a  statement  of  the  case 
all  of  which  he  had  the  same  defense,  see  post,  §  266,  note.  The  opinion 
that  he  owed  nothing  to  the  common  in  Tribette  v.  Illinois  Cent.  R.  Co., 
debtor.     In  Zahnhizer  v.  Hefner,  su-       supra,    is    so    sowsational    in    many 


§  264  EQUITY    JURISPRUDENCE.  428' 

that  there  is  no  conflict  between  the  decisions  as  actually 
made.  With  the  judicial  opinion,  however,  it  is  otherwise. 
Laying  out  of  view  the  groups  of  cases  concerning  assess- 
ments, and  taxes,  and  public  burdens,  with  respect  to  which 

amine  some  of  the  leading  authorities  for  the  principle  that  should  govern 
it.  In  Bouverie  v.  Prentice,  1  Brown  Ch.  200,  Lord  Thurlow  held  that  where 
a  number  of  persons  claim  one  right  in  one  subject,  one  bill  may  be  sustained 
to  put  an  end  to  suits  and  litigation.  That  was  the  case  of  a  bill  filed  by  the 
lady  of  a  manor  against  several  tenants  for  quitrents  due,  and  the  metliod 
was  adopted  to  prevent  multiplicity  of  suits.  But  it  was  not  considered 
as  coming  within  the  principle  laid  down  by  the  courts.  The  lord  chancellor 
remarked  that  no  one  issue  could  try  the  cause  between  any  two  of  the  parties 
(defendant)  ;  and  he  could  not  conceive  upon  what  principle  two  different 
tenants  of  distinct  estates  should  be  brought  before  him  together  to  hear  each 
other's  rights  discussed.  In  Ward  v.  Duke  of  Northumberland,  2  Anstr.  4G9, 
the  court  says  that  the  cases  where  unconnected  parties  may  join  in  a  suit 
are,  where  there  is  one  common  interest  among  them  all,  centering  in  the 
point  in  issue  in  the  cause.  Lord  Redesdale,  in  Whaley  v.  Dawson,  2  Schoale* 
&  L.  3G7,  held  this  principle,  that  where  there  was  a  general  right  claimed  by 
the  bill  covering  the  whole  case,  the  bill  would  be  good,  though  the  defendants 
had  separate  and  distinct  rights;  but  if  the  subjects  of  the  suit  were  in  them- 
selves perfectly  distinct,  a  demurrer  would  be  sustained.  The  same  rule  is 
recognized  in  Saxton  v.  Davis,  18  Yes.  72;  in  Hester  v.  Weston,  1  Vern.  463; 
and  in  Mayor  of  York  v.  Pilkington,  1  Atk,  282.  In  Cooper's  Eq.  PI.  182, 
this  rule  is  given :     '  The  court  will  not  permit  several  plaintiffs  to  demand  by 

of  its  statements,  and  has  been  so  different  actions  are  wrongfully  seek- 
frequently  reprinted,  that  it  appears  ing  to  recover  damages  by  their  sev- 
to  call  for  special  notice.  Campbell,  eral  actions,  all  of  which  grew  out  of 
C.  J.,  states  the  facts  as  follows:  the  same  occurrence,  and  depend  for 
"A  number  of  different  owners  of  their  solution  upon  the  same  ques- 
property  in  the  town  of  Terry,  de-  tions  of  fact  and  of  law.  Wherefore, 
stroyed  by  fire  from  sparks  emitted  to  avoid  multiplicity  of  suits,  and  the 
by  an  engine  of  the  appellee,  sever-  consequent  harassment  and  vexation, 
ally  sued  in  the  circuit  court  to  re-  all  of  the  said  plaintiffs  are  sought 
cover  of  the  appellee  damages  for  to  be  enjoined  from  prosecuting  their 
their  respective  losses  by  said  fire,  different  actions,  and  to  be  brought 
alleged  to  have  resulted  from  the  in  and  have  the  controversies  settled 
negligence  of  the  defendant.  While  in  this  one  suit  in  equity.  There  is 
these  actions  were  pending,  the  ap-  no  common  interest  between  these  dif- 
pellee  exhibited  its  bill  against  the  ferent  plaintiffs,  except  in  the  ques- 
several  plaintiffs,  averring  that  no  tions  of  fact  and  law  involved." 
liability,  as  to  it,  arose  by  reason  of  Campbell,  C.  J.,  asserts  that  on  the 
the  fire,  which  arose,  not  from  any  facts  as  thus  stated  "  the  granting 
negligence  or  wrong  of  it  or  of  its  and  maintaining  the  injunction  are 
servants,  but  from  the  fault  of  fully  sustained  by  Pomeroy  Eq.  Jur., 
others,  for  wliich  it  is  not  respon-  Vol.  1,  §  255  et  seq."  With  this  the 
Bible;   and  that  the  plain tiifs  in  the  editor  agrees,   if  the  bill   really  pre- 


•429  TO   PREVENT   A    MULTIPLICITY    OF    SUITS.  §  264 

there  has  been  so  much  antagonism  on  the  part  of  the  courts, 
there  is  much  in  these  opinions,  in  the  course  and  tendency 
of  their  reasoning,  and  in  the  rules  which  they  lay  down  as 
tests  of  the  jurisdiction,  which  conflicts  directly  and  unmis- 

one  bill  several  matters  perfectly  distinct  and  unconnected  against  one  de- 
fendant; nor  one  plaintiff  to  demand  several  matters  of  distinct  natures 
against  several  defendants.'  And  to  exemplify  the  rule,  the  following  case 
is  given  from  2  Dick.  677 :  If  an  estate  was  sold  in  lots  to  different  persons, 
the  purchasers  could  not  join  in  one  bill  against  the  vendor  for  a  specifio 
performance;  for  each  party's  case  would  be  distinct,  and  would  depend  upon 
its  own  peculiar  circumstances,  and  there  must  be  a  distinct  bill  upon 
each  contract.  Nor  could  such  vendor,  on  the  other  hand,  file  one  bill  for 
a  specific  performance  against  all  the  purchasers.  Lord  Kenyon,  in  Birkley  v, 
Presgrave,  1  East,  227,  gives  the  same  illustration;  and  adds  that,  in  general, 
ft  court  of  equity  will  not  take  cognizance  of  distinct  and  separate  claims  of 
different  persons  in  one  suit,  though  standing  in  the  same  relative  situation. 
In  the  case  of  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  139,  Chancellor  Kent  reviews 
the  leading  authorities,  and  comes  to  this  conclusion,  that  a  bill  filed  against 
several  persons  must  relate  to  matters  of  the  same  nature,  and  having  a  con- 
nection with  each  other,  and  in  which  all  the  defendants  are  more  or  less  con- 
cerned, though  their  rights  in  respect  to  the  general  subject  of  the  case  may 
be  distinct."  The  chancellor  then  remarks  that  suits  by  creditors,  legatees, 
etc.,  depend  upon  the  principle  that  there  is  such  a  privity  between  them 
that  a  complete  decree  may  be  made  determining  the  rights  of  all.  Also 
cases  of  lord  and  tenants  concerning  the  common  rights,  of  parson  and  parish- 

sented  the  single  question,  a  denial  justice:  "There  is  no  such  doctrine 
of  the  complainant's  negligence.  But  in  the  books  (  !),  and  the  zeal  of  the 
it  appears  from  the  briefs  of  counsel  learned  and  usually  accurate  writer 
that  the  point  was  argued,  that  nu-  mentioned,  to  maintain  a  theory,  has 
merous  unrelated  issues  of  fact  were  betrayed  him  into  error  on  this  sub- 
presented,  which  the  suit  in  equity  ject.  .  .  .  Every  case  he  cited  to 
would  not  avail  to  lessen.  Neither  support  his  text  will  be  found  to  be 
the  court  nor  the  reporter  enlightens  either  where  each  party  might  have 
us  further  as  to  the  facts  of  the  case;  resorted  to  chancery  or  been  pro- 
but  it  is  evident  that  if  the  com-  ceeded  against  in  that  forum,  or  to 
plainant's  real  defense  to  the  plain-  rest  on  some  recognized  ground  of 
tiffs'  suits  was,  say,  contributory  equitable  interference  other  than  to 
negligence  on  the  part  of  the  several  avoid  multiplicity  of  suits.  The  cases 
plaintiffs,  a  separate  issue  with  each  establish  this  proposition,  viz. :  W'here 
of  them  could  not  be  avoided  by  re-  each  of  several  may  proceed  or  be 
moving  the  cases  to  a  court  of  equity.  proceeded  against  in  equity,  their 
The  decision  of  the  court  would  then  joinder  as  plaintiffs  or  defendants  in 
be  unquestionably  correct.  See  ante,  one  suit  is  not  objectionable;  but  this 
§  251%.  The  opinion,  however,  eon-  is  a  very  different  question  from  that, 
sists  of  a  sweeping  denial  of  the  au-  whether,  merely  because  many  ae- 
thor's  conclusions  as  to  classes  third  tions  at  law  arise  out  of  the  same 
and   fourth.     Says  the  learned  chief  transaction    or    occurrence,    and    de- 


§  264  EQUITY   JUmSPRUDENCB.  430 

takably  with  tlie  doctrines  and  rules  necessarily  contained 
in  numerous  well-settled  and  well-known  authorities,  both 
English  and  American.  All  attempt  to  reconcile  or  to  pro- 
nounce upon  this  contradiction  is  postponed  to  a  subsequent 
paragraph. 

ioners  concerning  a  modus,  and  some  others,  are,  as  he  asserts,  governed 
by  the  same  notion.  He  proceeds :  "  These  last  may,  with  more  propriety, 
be  classed  under  that  branch  of  equity  which  relates  to  bills  of  peace.  These- 
bills  have  no  affinity  with  the  one  now  before  the  court.  It  is  true,  the  legiti- 
mate object  of  them  is  to  avoid  a  multiplicity  of  suits;  and  the  ancient  practice 
of  the  court  was,  not  to  interfere  until  the  legal  right  had  first  been  tried 
at  law  in  an  individual  case;  after  which  the  court  of  equity  would  interfere 
to  quiet  that  right  by  injunction.  This  is  not  a  bill  of  peace,  and  I  believe 
it  has  not  been  contended  that  a  land-owner  in  the  county  of  Warren  or 
Morris,  not  coming  in  and  making  himself  a  party  to  this  suit,  would  be 
in  any  wise  affected  by  it.  I  think  the  principle  laid  down  in  Cooper  is  the 
correct  one,  that  it  is  fairly  deducible  from  the  cases,  and  must  govern  this. 
According  to  that  principle,  I  feel  constrained  to  say  that  the  bill  cannot 
be  sustained.  There  is  no  kind  of  privity  between  these  complainants;  there 
is  no  general  right  to  be  established  as  against  the  defendant,  except  the 
general  right  that  the  wrong-doer  is  liable  to  answer  for  his  misdeeds  to  the 
injured  party,  which  surely  does  not  require  to  be  established  by  such  a  pro- 
ceeding as  this.  The  utmost  that  can  be  said  is,  that  the  defendant  stands 
in  the  same  relative  position  to  all  these  complainants.  There  is  no  com- 
mon interest  in  them  centering  in  the  point  in  issue  in  the  cause,  which  is 
the  rule  in  2  Anstruther.     Nor  is  there  any  general  riglit  claimed  by  the  bill 

pend  on  the  same  matters  of  fact  and  of  parties  forms   a   vital   and  neces- 

law,  all  may  proceed  or  be  proceeded  sary  part  of  the  author's  argument, 

against  jointly  in  one  suit  in  chan-  Ante,  note    (c)    to  §  257.     In  regard 

eery;   and  it  is  believed  that  it  has  to    the    cases    selected    by    Campbell, 

never  been  so  held,  and  never  will  be,  C.  J.,   for   special   animadversion   we 

in    cases    like    those    here    involved,"  may  observe:  that  if  Osborne  v.  Wis- 

etc.     It  may  be  remarked,  in  passing,  consin  Cent.  R.  Co.,  43  Fed.  824,  ante, 

that  the  language  italicized  is  a  severe  note  to  §  261,  Third  Class,   (I),   (a), 

reflection    upon    the    learned    judge's  was   a   case   in   which   each   plaintiff 

own  court,  which,  only  nine  years  be-  "  might  have  brought  his  separate  bill 

fore,  rendered  a  decision,  concurred  in  to  quiet  title,"  there  is  nothing  in  the 

by  this  same  judge,  adopting  the  au-  opinion  of  Harlan,  J.,  from  which  that 

thor's  conclusions  and  applying  them  fact  may  be  inferred;  that  in  Keese  v. 

to  a  case  which,  as  the  court  then  ad-  Denver,    10    Colo.    112,    15    Pac.    825,. 

mitted,    presented    no   other    possible  ante,  note  (b)  to  §  259,  the  demurrer 

ground    of    jurisdiction;     Pollock    v.  was  both  to  the  misjoinder  and  to  the 

Okolona    Sav.    Inst.,    01    Miss.    293,  want  of  equity  in  the  complaint,  and 

ante,   note   to    §    2(51,    Class    Fourth,  in  overruling  it  the  text  was  cited  on. 

(I),    (c).      We  have   already   shown  both  grounds;  that  in  Carlton  v.  New- 

that  tlie  statement  and   proof  of  the  man,  77  Me.  408,  the  court  states  iu. 

ruIf'H    of    equity    relatiisg    to    joinder  the  plainest  and  most  emphatic  maU' 


431  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  265 

§  265.  In  Cases  of  Illegal  Taxes  and  Public  Burdens. —  I  pass 
to  cases  concerning  local  assessments,  general  taxes,  and 
public  debts  or  burdens.  The  line  of  decisions  has  already 
been  mentioned,  where,  upon  an  equity  suit  brought  in  most 
instances  by  one  proprietor,  to  restrain  or  to  set  aside  soma 

covering  the  whole  case,  which  is  the  principle  adopted  by  Lord  Redesdale. 
Chancellor  Kent's  rule  is  quite  as  broad  as  any  authority  will  warrant,  but 
it  is  not  broad  enough  for  the  case  now  before  the  court.  It  requires  that  a 
bill  against  several  persons  must  relate  to  matters  of  the  same  nature,  and 
having  a  connection  with  each  other,  and  in  which  all  the  defendants  are  more 
or  less  concerned."  In  whatever  manner  we  may  regard  the  general  course  and 
tendency  of  the  chancellor's  reasoning  in  this  opinion,  it  is  very  evident  that 
the  actual  decision  made  upon  the  facts  does  not  in  the  slightest  degree 
conflict  with  any  of  the  cases  heretofore  quoted,  in  which  the  jurisdiction 
has  been  exercised.  The  facts  of  this  case  clearly  distinguish  it  from  each 
and  all  of  them.  Although  on  the  first  superficial  view  there  may  appear 
to  be  the  same  community,  since  the  single  defendant  was  all  the  time  prose- 
cuting one  enterprise,  viz.,  constructing  its  canal,  yet  in  the  case  of  each  plain- 
tiff there  was  a  separate,  distinct  trespass  upon  his  land;  the  claim  of  each 
land-owner  resulted  from  a  separate  injury  to  his  own  property,  unconnected 
with  the  injuries  done  to  the  others.  This  is  the  vital  distinction  in  the  facts 
which  removes  this  case  frcm  the  operation  of  the  doctrine.  In  the  group 
of  decisions  where  many  land-owners  have  united  in  a  suit  to  restrain  a  tres- 
pass or  a  nuisance,  such  as  a  diversion  of  water  from  their  mills,  or  an 
erection  blocking  up  a  passage  to  all  their  buildings,  the  one  wrongful  act 
of  the  defendant,  uno  flatu,  did  the  injury  complained  of  to  the  land  of  each 

ner  that  illegality  is  no  ground  for  §  256,  "  furnishes  no  sort  of  support 
enjoining  a  tax  at  the  suit  of  the  to  the  text  of  the  author."  The  case 
single  plaintiff,  and  bases  the  injunc-  in  question,  constantly  relied  on  as 
tion  squarely  on  the  author's  text;  one  of  the  strongest  authorities  in 
that  in  De  Forest  v.  Thompson,  40  support  of  the  doctrine,  is  too  plain 
Fed.  375,  Jackson,  J.,  and  Harlan,  J.,  and  simple  to  admit  of  misconception, 
so  far  from  holding  tbnt  "a  bill  might  The  learned  chief  justice  admits  that 
have  been  exhibited  against  each  de-  the  author's  text  has  frequently  been 
fendant  separately,"  concede  that  as  cited  or  quoted  by  the  courts;  but 
against  each  defendant,  separately  claims  that  all  these  cases  are  "  re- 
considered, the  remedy  at  law  would  solvable  upon  other  grounds  of  equi- 
have  been  adequate;  that  in  New  table  interference."  An  examination 
York,  etc.,  R.  R.  Co.  v.  Schuyler,  17  of  the  recent  cases  cited,  ante,  in 
N.  Y.  592,  the  court  expressed  the  note  to  §  261,  will  show  that  this 
opinion  that  the  suit  could  be  sus-  claim  is  true  of  only  a  few  of  the.se 
tained  as  a  bill  of  peace,  even  if  theie  decisions. 

were  no  other  element  of  equity  ju-  The  opinion  in  the  "  Tribette  case  " 

risdiction.      But    the    author's    critic  was  followed  in  Duckworth,  etc.,  Co. 

even   ventures   the   astounding  asser-  v.  Fain,  109  Tenn.  56,  70  S.  W.  813; 

tion   that   Sheffield   Water   Works   v.  but  in  the  latter  case  the  exercise  of 

Yeomans,  L.  R.  2  Ch.  8,  ante,  note  to  the   jurisdiction   would   clearly   have 


^  265  EQUITY   JUKISPRUDENCE.  432 

illegal  assessment  or  tax  which  imposed  a  lien  or  liability 
upon  the  plaintiff  and  others  in  the  same  position,  the  court 
has  held  that  it  would  exercise  its  jurisdiction  and  grant  the 
relief  only  where  such  judicial  action  was  necessary  to  pre- 
vent a  multiplicity  of  suits,  or  to  remove  a  cloud  from  title, 
or  to  avoid  irreparable  mischief.  These  decisions  therefore 
assert  affirmatively  that  a  court  of  equity  may  relieve  from 
illegal  assessments  and  taxes  on  the  ground  of  preventing 

plaintiflF;  in  that  group  where  many  lot-owners  united  to  obtain  relief  from 
an  illegal  assessment,  the  one  official  act  of  the  municipality  placed  an  un- 
lawful burden  on  the  lot  of  each  plaintiflf,  and  by  this  single  wrong  all  of  the 
lot-owners  sustained  their  individual  but  common  injuries.  The  same  ia 
true  in  the  suits  by  tax-payers  to  be  relieved  from  an  illegal  tax  or  publio 
debt.  In  the  present  case,  the  transaction  was  otherwise,  both  in  form  and 
in  its  nature.  There  was  no  single  wrongful  act  of  the  canal  company,  which 
by  its  comprehensive  nature  produced  the  same  injury  upon  the  land  of  each 
proprietor.  On  the  contrary,  the  company  committed  a  separate  and  wholly 
independent  trespass  upon  the  land  of  each  by  itself,  and  these  trespasses  were 
not  simply  distinct  in  contemplation  of  la.w,  but  they  were  different  in  their 
form,  nature,  and  extent.  It  necessarily  follows,  therefore,  that  there  was  not 
4imong  the  plaintiffs  even  any  community  of  interest  in  the  relief  sought,  nor 
in  the  questions  at  issue,  which,  it  is  conceded,  must  exist  in  order  that  the 
court  may  interfere,  and  which  did  exist  in  all  the  groups  of  cases  hereto- 
fore cited.  The  decision  of  the  chancellor  was  therefore  unquestionably  correct; 
but  I  cannot  accept  the  whole  course  and  tenor  of  his  reasoning  as  equally 
■correct.  It  is  the  case,  not  uncommon,  of  a  judge  who  seeks  to  sustain  a  fore- 
gone conclusion  by  giving  an  imperfect  construction  or  improper  bias  to  the 
authorities  which  he  cites.c  The  very  recent  case  of  Board,  etc.,  v.  Deyoe,  77 
N.  Y.  219,  is  directly  contrary  to  County  of  Lapeer  v.  Hart,  Harr.  (Mich.)  157. 

been  ineffectual,  within  the  principle  cases  of  the  "  third  class,''  in  neither 

of    §    25iy2,   ante.       The   Mississippi  of  which  was  there  any  possible  pre- 

court    has    since    abandoned    its    ex-  tense  of  connection  among  the  nuiner- 

treme  position;   the  "  Tribette  case"  ous   plaintiffs,   except  with   reference 

was    first    distinguished    in    Illinois  to  the  questions  of  fact  and  law  in 

Central  R.  Co.  v.  Garrison,  81   Miss.  volved. 

257,  95  Am.  St.  Rep.  469,  32  South.  Cases  of  the  Third  Class  Denying 

■096,  where  the  plaintiff  successfully  the    Jurisdiction. —  See    post,    §  207, 

nsserted  in  equity  a  "common  right,"  note. 

the   character   of   which    ia   not   dis-  (c)     For    many    further    instances 

«lo»ed,  against  the  unconnected  claims  where  the  court  refused  to  interfere 

of  numerous  suitors;  and  afterwards  because  there  was  no  "community  of 

was  tacitly  overruled  in  Hightown  v.  interest   in   the  relief  sought,  nor  in 

Mobih',  J.  &  K.  C.  R.  Co.   (Miss.),  36  the    questions    at    issue,"    see    ante. 

South.   82.  and   Tisdale  v.   Insurance  §  25 P/^,  and  notes. 
<Jo.  of  N.  A.   (Miss.),  36  South.  568, 


433  TO   PEEVENT    A    MULTIPLICITY    OF    SUITS.  §  266 

a  multiplicity  of  suits ;  but  they  make  no  attempt  to  deter- 
mine when  or  under  what  circumstances  such  ground  for  its 
interference  would  exist;  and  they  all  hold  that  the  mere 
facts  of  the  assessment  or  tax  being  illegal  and  of  its  creat- 
ing an  illegal  personal  liability  or  unlawful  lien,  and  of  its 
affecting  numerous  tax-payers  and  owners  in  the  same  man- 
ner, do  not  furnish  the  ground  for  equitable  interference, 
nor  bring  the  case  within  the  jurisdiction  based  upon  the 
prevention  of  a  multiplicity  of  suits.^  " 

§  266.  The  cases,  however,  to  which  I  now  refer  go  much 
further  than  these.  There  are  well-considered  adjudica- 
tions of  several  courts,  certainly  among  the  ablest  courts 
of  tliis  country,  which  hold  that,  as  a  general  rule,  or  except 
under  very  special  circumstances,  a  court  of  equity  will  not 
exercise  its  jurisdiction  and  grant  relief  upon  the  doctrine 
of  preventing  a  multiplicity  of  suits  in  a  suit  brought  by  a 
single  tax-payer  and  property  owner,  or  by  one  or  more 
suing  on  behalf  of  himself  and  others,  or  by  many  indi- 
viduals united  as  co-plaintiffs  to  restrain  the  enforcement 
of,  or  to  set  aside  and  annul,  or  to  be  otherwise  relieved 
from,  any  local  municipal  assessment,  or  any  tax,  purely 
personal  or  made  a  lien  on  property,  laid  by  a  county,  town, 

1  See  ante,  §  259;  Mayor,  etc.,  of  Brooklyn  v.  Meseiole,  26  Wend.  132, 
140;  Heywood  v.  Buffalo,  14  N.  Y.  534,  541;  Guest  v.  Brooklyn,  69  N.  Y.  506, 
512,  513;  Bouton  v.  Brooklyn,  15  Barb.  375,  387,  392;  Ewing  v.  St.  Louis,  5 
Wall.  413,  418;  Dows  v.  Chicago,  11  Wall.  108,  110,  111;  Scribner  v.  Allen, 
12  Minn.  148;  Minnesota  Oil  Co.  v.  Palmer,  20  Minn.  468;  White  Sulphur 
Springs  Co.  v.  Holley,  4  W.  Va.  697 ;  Harkness  v.  Board  of  Pub.  Works,  1 
McAr.  121,  131-133.  It  should  be  observed  that  almost  all  of  these  cases,  I 
believe  with  hardly  an  exception,  are  avowedly  decided  upon  the  authority 
of  the  opinion  given  in  Mayor  v.  Meserole,  26  Wend.  132,  and  the  other  New 
York  cases  following  and  adopting  it. 

(a)   Cited,  Strenna  v.  Montgomery,  345;   Wilkerson  v.  Walters,  1  Idaho, 

«6    Ala.    340,    5    So.    115.      See    also  564;    Bradish    v.    Lucken,    38    Minn. 

Schulenberg-Boeckeler  Limiber  Co.  v.  186,  36  N.  W.  454;  Coulson  v.  Harris, 

Town  of  Ilayward,  20  Fed.  422   (dis-  43    Miss.   728,    754   ff.;    Hoboken   L., 

tinguished   ante,    §   251^/^)  ;    People's  etc.,  Co.  v.  City  of  Hoboken,  SIN.  J. 

Nat.  Bank  v.  Marye,   107   Fed.   570;  Eq.  462;  Dyer  v.  School  District,  61 

Murphy    v.    City    of    Wilmington,    6  Vt.  96,  17  AtL  788. 
Houst.    (Del.)    108,  22  Am.  St.  Rep. 

Vol.  1—28 


§  266  EQUITY   JURISPRUDENCE.  434 

city,  or  other  district,  or  any  official  act,  proceeding,  or 
transaction  of  a  county,  town,  city,  or  district,  whereby  a 
public  indebtedness  is  or  would  be  created,  and  the  burden 
of  taxation  is  or  would  be  enhanced,  upon  the  ground  that 
such  assessment,  tax,  official  proceeding,  or  public  debt  was 
illegal,  and  either  voidable  or  void.  These  cases  therefore 
present  a  direct  conflict  of  judicial  opinion  with  those  quoted 
in  the  preceding  paragraphs.  The  most  important  reasons 
given  by  the  courts  in  support  of  the  general  conclusion 
which  they  all  reach  are  placed  in  the  accompanying  foot- 
note.^ * 

1 1  have  arranged  these  cases  into  classes  according  to  their  subject-mat- 
ter; and  those  in  each  class,  wherever  possible,  according  to  their  forms, 
viz.,  those  brought  by  or  on  behalf  of  numerous  plaintiffs,  and  those  by  a  single 
plaintiff  suing  alone. 

Cases  concerning  some  public  official  action  not  directly  involving  taasation: 
Doolittle  V.  Supervisors,  18  N.  Y.  155;  Roosevelt  v.  Draper,  23  N.  Y.  318. 

Cases  concerning  local  assessments  by  numerous  lot-owners :  Dodd  v.  Hart- 
ford, 25  Conn.  232,  238;  Howell  v.  City  of  Buffalo,  2  Abb.  App.  412,  416; 
Bouton  v.  Brooklyn,  15  Barb.  375,  387,  392-394. 

Cases  concerning  taxes  or  proceedings  which  would  create  a  public  debt,  and 
thus  increase  taxation, —  1.  By  numerous  tax-payers:  Youngblood  v.  Sexton, 
32  Mich.  40G,  20  Am.  Eep.  G54 ;  Sheldon  v.  School  District,  25  Conn.  224,  228 ; 
Harkness  v.  Bd.  of  Pub.  Works,  1  McAr.  121,  127-133;  Kilbourne  v.  St.  John, 
59  N.  Y.  21,  27,  17  Am.  Rep.  291;  Ayres  v.  Lawrence,  63  Barb.  454;  Tift  v.  Buf- 
falo, 1  Thonip.  &  C.  150 ;  Comins  v.  Supervisors,  3  Thomp.  &  C.  296 ;  Barnes  v. 
Beloit,  19  Wis.  93;  Newcomb  v.  Horton,  18  Wis.  566,  568,  569;  Cutting  v.  Gil- 
bert, 5  Blatch.  259,  261-263.  2.  By  a  single  tax-payer:   Phelps  v.  Watertown,  61 

(a)  The  recent  case  of  Equitable  the  doctrine  here  laid  down,  bases  hia 
Guarantee  &  T.  Co.  v.  Donahoe  (Del.),  refusal  of  relief  on  several  grounds; 
45  Atl.  583,  is  notewortliy  for  its  viz.,  (1)  that  the  equitable  jurisdic- 
Btatement  of  those  motives  of  public  tion  in  Delaware  is  restricted  by  the 
policy  which,  in  many  states,  serve  to  constitution  to  cases  where  there  is 
prevent  the  operation  of  the  juris-  not  suflicient  remedy  by  common  law 
diction  in  matters  of  taxation.  The  or  statute;  (2)  that  the  complainant 
complainant,  a  trust  company,  sought  stood  in  no  real  danger  of  repeated 
to  restrain  the  collection  of  an  al-  litigation,  as  it  was  probable  that  the 
leged  illegal  personal  tax,  on  the  tax  collector  would  abide  by  the  re- 
ground  tliat  it  was  trustee  or  guard-  suit  of  a  single  suit  at  law;  quoting 
ian  in  a  large  number  of  estates  and  Fellows  v.  Spaulding,  141  Mass.  92, 
would  be  involved  in  a  multiplicity  6  N.  E.  549,  and  Express  Co.  V.  Sei- 
of  suits  if  it  paid  the  tax.  Nichol-  bert,  44  Fed.  315;  (3)  motives  of  pub- 
Hon,  Ch.,  referring  to  this  ciiapter,  lie  policy.  The  chancellor  observes 
but  declining  to  discuss  the  scope  of  with  much  force,  "As  society  become* 


435  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  267 

§  267.  Summary  of  Conclusions. —  The  theories  concern- 
ing the  doctrine  advocated  by  different  judges,  and  the  con- 
clusions reached  by  different  decisions,  have  been  so  fully 
explained,  compared,  and  examined  in  the  accompanying 
foot-notes,  that  I  only  need  state  here  in  the  text  the  propo- 

Barb.  121,  123;  Ayres  v.  Lawrence,  63  Barb.  454;  White  Sulphur  Springs  Co.  v. 
Holley,  4  W.  Va.  597.  The  cases  of  Doolittle  v.  Supervisors,  18  N.  Y.  155,  and 
Roosevelt  v.  Draper,  23  N.  Y.  318,  are  in  some  respects  leading.  They  have  ex- 
erted a  marked  influence,  and  have  even  been  controlling  upon  many  of  the  sub- 
sequent decisions,  but,  in  my  opinion,  through  a  misapprehension  of  their  tru& 
significance  and  eflfect,  since  they  really  have  no  legitimate  connection  what- 
ever with  the  equitable  jurisdiction  based  upon  the  prevention  of  a  multiplicity 
of  suits.  The  rationale  of  the  decision  —  the  ratio  decidendi  —  in  each  con- 
sisted solely  in  motives  of  public  policy  and  governmental  expediency.  They 
hold  that  when  local  officers,  as  of  a  county  or  a  city,  having  quasi  legislative 
and  administrative  functions,  do  some  official  act  which  is  illegal  or  in  ex- 
cess to  their  powers,  an  individual  citizen,  who  suffers  thereby  only  the 
injuries  which  are  sustained  in  common  by  all  other  members  of  the  com- 
munity,—  that  is,  who  suffers  no  special  injury,  and  nothing  which  is  not 
also  suffered  alike  by  all  other  citizens  of  the  district, —  has  no  cause  of  action 
whatever,  either  legal  or  equitable,  no  right  to  any  remedy  from  a  court  of 
justice.  His  only  relief  is  an  appeal  to  the  legislature  to  obtain,  if  possible, 
a  correction  of  the  wrong,  or  an  exercise  of  the  elective  franchise,  by  which 
perhaps  other  and  better  officers  may  be  chosen.  Certain  passages  of  the 
opinions  may,  when  isolated  from  their  context,  seem  to  go  some  further; 
but  this  is  the  true  force  and  effect  of  these  celebrated  cases.  No  question 
could  arise  whether,  under  such  circumstances,  many  citizens  could  unite  as  co- 
plaintiffs,  or  one  could  sue  on  behalf  of  others,  since  no  one  had  any  right 
which  a  court  of  justice  could  recognize.  I  have  thus  explained  the  true  value 
of  these  decisions,  because  they  obviously  lie  at  the  foundation  of  many  of  the 
cases  cited  in  this  note,  in  which  courts  have  pronounced  against  the  claims 

more  and  more  complex,  and  interests  steps,  guided   always   by  careful   ob- 

become  more  and  more  interlaced,  the  servation  of  the  practical  consequen- 

value   and   necessity  of   equity's   pre-  ces  of  what  had   been  done   already, 

ventive     remedies     becomes     greater.  And   in   no   department   has   the    ad- 

But,  just  as  their  beneficent  possibili-  herence  to  precedent  been  so  marked, 

ties  have  increased  in  consequence  of  in  no  sphere  of  action  does  it  behoove 

the    magnitude    of    the    evils    to    be  the  equity  judge  to  be  so  careful  '  to 

averted  by  their  legitimate  use,  so  in  keep  within  the  ancient  merestones,' 

exact     proportion    has    the    possible  as  when  there  is  question  of  wielding 

mischief  increased  that  may  be  caused  the  tremendous  power  of  the  injimc- 

by  their  illegitimate  use.     The  Eng-  tion    process."      The    chancellor    dis- 

lish    and    American    equitable    juris-  tinguishes  the  case  of  Cummings  v. 

prudence  is  a  unique  system;  a  com-  Bank,    101   U.   S.    153,   ante,   note   to 

plex    interweaving    of    principle    and  §  261,  on  several  grounds,  and  cites 

precedent,  of  reason  and  experience.  many  cases  denying  the  jurisdiction 

It  has  progressed  by  slow  and  careful  to  restrain  illegal  personal  taxes. 


§  267  EQUITY   JURISPRUDENCE.  436 

sitions  as  to  the  extent  and  operation  of  the  doctrine  which^ 
in  mv  opinion,  appear  to  be  supported  by  principle  and  by 
authority.  With  respect  to  eases  of  the  first  and  the  second 
classes,  where  the  whole  judicial  controversy  is  always  be- 

■of  tax-payers.  That  they  really  differ  most  essentially,  in  their  most  vital 
principle,  from  these  latter  cases  is  evident  from  the  fact  universally  con- 
ceded that  a  tax-payer  upon  whom  an  illegal  tax  has  been  imposed  has  some 
<yiuse  of  action,  some  remedial  right;  he  has,  at  least,  the  right  to  main- 
tain an  action  at  law  to  recover  damages  when  an  illegal  tax  has  been  en- 
forced. There  is  therefore  a  fundamental  difference  between  him  and  the  citi- 
zen mentioned  in  Doolittle  v.  Supervisors,  18  N.  Y.  155,  and  Roosevelt  v. 
Draper,  23  N.  Y.  318;  and  the  principle  established  by  those  cases  has  no  legiti- 
mate application  to  the  questions  concerning  the  equitable  jurisdiction  to 
grant  relief  to  a  body  of  tax-payers. 

In  Howell  v.  Buffalo,  2  Abb.  App.  412,  416,  it  was  held  that  a  suit  by  nu- 
merous owners  of  separate  lots  to  set  aside  an  illegal  assessment  does  not  come 
within  the  equity  jurisdiction  to  prevent  a  multiplicity  of  suits;  the  plaintiff^j 
cannot  unite  in  an  equitable  action  merely  to  avoid  the  necessity  of  separate 
actions.  The  court  gave  the  following  theory  of  the  doctrine  as  the  reason  for 
their  conclusion:  "It  is  not  a  case  for  the  application  of  the  rule  for  the 
prevention  of  a  multiplicity  of  suits.  No  one  of  the  plaintiffs  is  threatened 
with  many  suits  or  much  litigation."  I  need  only  remark,  that  if  this  test 
of  the  doctrine  be  correct,  then  many  English  and  American  judges  have  often 
fallen  into  grievous  error.  In  Dodd  v.  Hartford,  25  Conn.  232,  238,  a  similar 
suit  upon  similar  circumstances,  the  same  ruling  was  made,  on  the  ground 
fthat  each  plaintiff  had  an  adequate  remedy  at  law. 

Youngblood  v.  Sexton,  32  Mich.  406,  410,  20  Am.  Rep.  654,  was  a  suit  by 
numerous  tax-payers  to  enjoin  the  collection  of  a  personal  tax  claimed  to  be 
illegal.  Held  to  be  settled  in  Michigan  that  in  case  of  such  a  personal  tax 
equity  has  no  jurisdiction  to  restrain  its  collection,  even  if  illegal,  the  ordi- 
nary remedy  by  action  at  law  being  adequate.  Cooley,  J.,  said  (p.  410)  : 
*'  The  jurisdiction  cannot  be  rested  on  the  doctrine  of  preventing  a  multi- 
plicity of  suits,  because  the  principles  that  govern  that  jurisdiction  have  no 
4ipplication  to  this  case.  It  is  sometimes  admissible  when  many  parties 
are  alike  affected  or  threatened  by  one  illegal  act,  that  they  shall  unite  in  a 
suit  to  restrain  it;  and  this  has  been  done  in  this  state  in  the  case  of  an 
illegal  assessment  of  lands:  Scofield  v.  Lansing,  17  Mich.  437.  But  the  cases 
are  very  few  and  very  peculiar,  unless  each  of  the  complainants  has  an  equi- 
table action  on  his  own  behalf.  Now.  the  nature  of  this  case  is  such  that 
each  of  these  complainants,  if  the  tax  is  invalid,  has  a  remedy  at  law,  which 
is  as  complete  and  ample  as  the  law  gives  in  any  other  cases.  He  may  resist 
the  sheriff's  process  as  he  might  any  other  trespass;  or  he  may  pay  the 
money  under  protest,  and  at  once  sue  for  and  recover  it  back.  But  no  other 
■complainant  has  any  joint  interest  loith  him  in  resisting  this  tax.  The  sum 
demanded  of  each  is  distinct  and  separate,  and  it  does  not  concern  one  of 
the  complainants  whether  another  pays  or  not.  All  the  joint  interest  the 
parties  liave  is  a  joint  interest  in  a  question  of  law;  just  such  an  interest 
as   niiglit   exiut   in   any   case    where   separate   demands   are   made   of   several 


437  TO   PREVENT   A   MULTIPLICITY   OF   SUITS.  §  267 

tweon  one  distinct  party  complaining  and  one  party  defend- 
ant, there  is  no  substantial  disagreement ;  the  rule  has  been 
settled  with  unanimity.  The  only  apparent  exception  con- 
sists in  the  fact  that  formerly  the  courts  of  equity  required 

persons.  [Gives  one  or  two  examples.]  We  venture  to  say  that  it  would  nofe 
be  seriously  suggested  that  a  common  interest  in  any  such  question  at  law, 
when  the  legal  interests  of  the  parties  were  wholly  distinct,  could  constitute 
any  ground  of  equitable  jurisdiction,  where  the  several  controversies  affected 
by  the  question  were  purely  legal  controversies.  Suits  do  not  become  of 
equitable  cognizance  because  of  their  number  merely.  This  was  affirmed  in 
Lapeer  Co.  v.  Hart,  Harr.  (Mich.)  157,  and  in  the  two  cases  of  Sheldon  v. 
School  Dist.,  25  Conn.  224,  and  Dodd  v.  Hartford,  25  Conn.  232.  In  these  cases 
the  single  assessment  of  a  school  tax  was  involved,  and  the  parties  con- 
cerned, if  permitted  to  unite,  might  have  had  the  whole  controversy  determined 
in  one  suit.  In  this  case,  the  controversy  is  either  separate,  as  the  tax  is 
several  against  eacli  individual;  or  it  is  general,  as  it  affects  all  the  persona 
taxed  under  the  law";  citing  also  Jones  v.  Garcia,  1  Turn.  &  R.  297,  and 
Yeaton  v.  Lenox,  8  Pet.  123,  and  Adams's  Equity,  198~202.b  J  have  thus  quoted 
at  some  length  from  Judge  Cooley's  opinion,  because  it  is  one  of  the  clearesfc 
statements  of  the  theory  which  it  supports  to  be  found  in  the  reports.  It 
should  be  observed  that  he  nowhere  adopts  the  test  laid  down  by  some  judge?,, 
that  each  of  the  numerous  persons  must  himself  be  exposed  to  many  actions,. 
in  order  that  a  court  of  equity  may  interfere.  With  respect  to  the  reason- 
ing of  the  opinion,  it  would,  if  correct,  overturn  at  one  blow  many  well-settled 
cases  not  relating  to  taxation,  in  which  the  jurisdiction  has  been  asserted 
both  by  English  and  American  courts.  For  example,  it  has  been  held  that  one 
copyholder  cannot  maintain  a  suit  in  equity  against  his  lord  of  the  manor, 
to  enjoin  or  to  set  aside  an  excessive  fine,  because  the  question  is  legal,  and' 
the  defense  would  be  perfectly  available  to  him  in  an  action  at  law  brought 
to  recover  the  fine.  But  numerous  copyholders  or  all  copyholders  of  the 
manor  may  unite  in  a  bill  in  equity  to  set  aside  excessive  fines  imposed  om 
each,  for  the  purpose  of  avoiding  a  multiplicity  of  suits.  I  cannot  perceive 
any  material  distinction,  or  why  every  position  of  Judge  Cooley's  opinion 
would  not  apply  to  and  contradict  this  case.  Many  more  examples  might 
be  given  from  cases  quoted  in  preceding  paragraphs.  The  objection  that  the 
primary  remedy  of  each  tax-payer  is  legal  is  certainly  too  broad;  for  it 
would  deny  the  jurisdiction  in  the  vast  majority  of  cases  where  it  is  con- 
fessedly proper  and  universally  admitted.  The  chief  object  of  the  juris- 
diction, the  fundamental  ground  and  reason  for  its  existence,  is,  that  it  fur- 
nishes a  complete  and  final  remedy  by  one  equitable  decree  to  parties  whose 
primary  rights,  cause  of  action,  and  remedies  are  wholly  legal,  either  to  a. 
single  party  who  must  otherwise  maintain  or  be  subjected  to  numerous  ac- 

(l>)     It     has     been     observed     that  weight    of    authority."      Williams   v.. 

"Judge  Cooley  in  his  work  on  Tax-  County   Court,   26   W.  Va.   488,   503, 

ation  in  the  edition  of  1879,  in  effect,  53  Am.  Rep.  94,  by  Green,  J.,  criticis- 

admits   that  his   views   as   above   ex-  ing  Youngblood  v.  Sexton, 
pressed  axe   opposed   to   the   decided 


'f  267  EQUITY    JURISPRUDENCE.  438 

the  complainant  to  establish  his  disputed  legal  estate,  in- 
terest, or  primary  right  by  repeated  recoveries  at  law, 
whereas  one  successful  trial  at  law  is  now  generally  re- 
garded as  sufficient.    It  is  also  possible  that  there  might  still 

tions  at  law,  or  to  a  body  of  persons,  wliere  each  of  them  must  otherwise 
maintain  or  be  subjected  to  a  similar  action  at  law.  Sheldon  v.  Scliool  Dis- 
trict, 25  Conn.  224,  228,  was  a  suit  by  thirty-nine  tax-payers  to  enjoin  tlie 
•enforcement  against  them  of  an  illegal  school  tax.  Held,  that  each  plaintiff 
had  an  adequate  remedy  at  law,  and  the  case  did  not  come  within  the  doc- 
trine as  to  the  prevention  of  a  multiplicity  of  suits.  The  court  said:  "The 
mere  saving  the  expense  of  separate  suits  is  no  ground  for  the  plaintiffs 
uniting  in  a  bill  in  equity  to  obtain  an  injunction  against  the  doing  of  an  act 
which  would  give  each  of  them  a  right  of  action  at  law."  The  Connecticut 
court  seems  to  have  subsequently  abandoned  this  position,  for  it  has  since, 
in  several  instances,  sustained  such  actions  on  behalf  of  tax-payer's.  See 
cases  cited  ante,  under  §  260.  In  Harkness  v.  Board  of  Public  Works,  1 
McAr.  121,  131-133,  it  was  held  that  equity  will  set  aside  an  illegal  tax 
assessed  on  the  property  of  a  tax-payer,  when  necessary, —  1.  To  remove 
a  cloud  from  his  title;  or  2.  To  avoid  irreparable  mischief;  or  3.  To  prevent  a 
multiplicity  of  suits.  But  that  when  individual  tax-payers  have  been  as- 
sessed under  an  illegal  tax  on  property  owned  by  them  separately,  and  they 
unite  in  an  action,  this  is  not  a  case  coming  within  the  doctrine  as  to  the 
prevention  of  a  multiplicity  of  suits,  and  equity  has  no  jurisdiction.  The 
opinion  gives  different  reasons,  and  does  not  show  very  clearly  on  what  ground 
the  court  places  its  conclusion.  While  it  seems  to  use  arguments  similar 
to  those  employed  by  Judge  Cooley,  supra,  the  adequacy  of  the  legal  remedy, 
the  absence  of  any  joint  interest,  etc.,  it  also  seems  to  rely  chiefly  on  the 
theory  that  each  tax-payer  is  only  injured  in  common  with  all  others,  and 
that  he,  therefore,  has  no  cause  of  action  or  remedial  right  which  any  court 
of  justice  can  recognize  and  protect.     See  supra. 

Tlie  New  York  cases,  Kilbourne  v.  St.  John,  59  N.  Y.  21,  27,  17  Am.  Rep. 
291,  Ayres  v.  Lawrence,  63  Barb.  458,  Tift  v.  Buffalo,  1  Thomp.  &  C.  150, 
and  Comins  v.  Supervisors,  3  Thomp.  &  C.  296,  were  suits  brought  to  set 
aside  or  to  restrain  town  or  city  bonding  proceedings,  unauthorized  by  law, 
by  which  a  municipal  debt  would  be  created,  and  the  burden  of  individual 
taxation  would  be  increased.  The  courts  held  that  no  such  suit  could  be  main- 
tained, either  by  tax-payers  uniting,  or  by  one  or  some  suing  on  belialf  of 
others,  or  by  a  single  tax-payer  suing  by  himself  alone.  But  the  reasons  for 
this  conclusion  have  no  real  connection  with  nor  bearing  upon  the  doctrine  con- 
cerning the  prevention  of  a  multiplicity  of  suits.  Tiie  ground  upon  which 
the  judgment  of  tiie  court  was  rested  is  the  same  that  had  been  before  an- 
nounced in  Doolittle  v.  Supervisors,  18  N.  Y.  155,  and  Roosevelt  v.  Draper,  23 
N.  Y.  318,  viz.,  that  the  iiulividual  tax- payer,  under  tiicse  circumstances,  has 
no  cause  of  action,  legal  or  equitable, —  has  no  remedial  right  acknowledgc^d 
by  a  court  of  justice.  If  he  has  no  right  or  remedy  individually,  he  does  not 
obtain  an}'  by  joining  himself  with  other  tax-payers  in  the  same  situation,  aa 
.  oo-plaintitrs.  This  theory  does  not  and  cannot  affect  the  doctrine  as  to  multi- 
j'^plicify   of  huits.     Tlie  jurisdiction   to   prevent  a  multiplicity  of  suits   never 


439  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  267 

be  some  difference  among  individual  equity  judges  in  regard 
to  the  extent  to  which  they  would  compel  a  complainant  to 
establish  his  legal  title,  and  to  prosecute  or  suffer  repeated 
actions  at  law,  before  they  would  interfere  on  his  behalf; 

confers  upon  a  party  a  remedial  right  where  none  of  any  kind  existed  before; 
its  exercise  necessarily  and  always  assumes  that  the  parties  had  some  prior 
existing  cause  of  action  or  remedial  right,  either  equitable  or  more  com- 
monly legal.  In  Barnes  v.  Beloit,  19  Wis.  93,  and  Newcomb  v.  Horton,  18 
Wis.  5GC,  568,  it  was  held  that  a  number  of  separate  lot-owners  or  tax-payers 
cannot  unite,  and  one  cannot  sue  on  behalf  of  himself  and  others,  to  restrain 
the  enforcement  of  an  invalid  tax  or  assessment,  since  there  is  no  sufficient 
common  interest  among  them;  but  one  lot-owner  or  tax-payer  is  permitted  in 
Wisconsin  to  bring  such  an  action  for  himself  alone.  In  the  case  of  Cutting  v. 
Gilbert,  5  Blatch.  259,  201-263,  six  firms  of  bankers  united  in  the  bill  on 
behalf  of  themselves  and  others,  etc.,  to  restrain  United  States  revenue  officers 
from  assessing  and  collecting  a  certain  United  States  tax.  Nelson,  J.,  was 
of  the  opinion  that  the  plaintiffs  were  not  liable  for  the  tax,  but  held  that  the 
bill  could  not  be  sustained,  since  the  remedy  by  action  at  law  was  adequate. 
He  stated  his  view  of  the  doctrine  in  the  following  clear  and  unmistakable 
language:  "The  interest  that  will  allow  parties  to  join  in  a  bill,  or  'that 
will  allow  the  court  to  dispense  with  the  presence  of  all  the  parties,  v/he:i 
numerous,  except  a  determinate  number,  is  not  only  an  interest  in  the  ques- 
tion, but  one  in  common  in  the  subject-matter  of  the  suit ;  such  as  the  case  of 
disputes  between  the  lord  of  a  manor  and  his  tenants,  or  between  the  ten- 
ants of  one  manor  and  those  of  another;  or  where  several  tenants  of  a  manor 
claim  the  profits  of  a  fair;  or  in  a  suit  to  settle  a  general  fine  to  be  paid  by 
all  the  copyhold  tenants  of  a  manor,  or  in  order  to  prevent  a  multiplicity  of 
Buits.  In  all  these  and  the  like  instances  given  in  the  books,  there  is  a 
community  of  interest  growing  out  of  the  nature  and  condition  of  the  right 
in  dispute:  for  although  there  may  not  be  any  privity  between  the  numerous 
parties,  there  is  a  common  title  out  of  which  the  question  arises,  and  which 
lies  at  the  foundation  of  the  proceedings.  ,  ,  .  In  the  case  before  me  the 
only  matter  in  common  among  the  plaintiffs,  or  between  them  and  the  de- 
fendant, is  an  interest  in  the  question  [of  law]  involved,  which  alone  cannot 
lay  a  foundation  for  the  joinder  of  parties."  He  goes  on  to  show  that  an 
injunction  at  the  suit  of  a  single  tax-payer  would  not,  as  a  matter  of  fact, 
prevent  a  multiplicity  of  actions.  There  is  no  room  here  for  misunderstanding. 
Is  the  learned  judge  correct,  upon  the  authorities,  in  the  test  which  he  lays 
down?  Undoubtedly,  in  many  of  the  decided  cases,  there  is  something  more 
than  a  community  of  interest  in  the  question  at  issue,  or  in  the  remedy  de- 
manded; there  is  a  community  of  interest  in  the  subject-matter,  in  the 
right,  or,  to  use  the  expressive  language  of  Mr.  Justice  Nelson,  "  a  com- 
mon title  out  of  which  the  question  arises."  As,  for  example,  where  all 
the  tenants  of  a  manor  assert  a  right  of  common  of  some  kind  arising  from 
the  customs  of  the  manor;  or  where  the  lord  asserts  some  claim  of  rent  against 
all  the  tenants  arising  in  the  same  manner;  or  where  all  the  parishioners  as- 
sert a  modus  against  the  parson;  and  other  like  instances.  But  there  cer- 
tainly are  many  cases,  relating  to  various  kinds  of  subject-matter,  in  which 


§  267  EQUITY   JURISPRUDENCE,  440 

but  this  difference,  if  it  exists,  only  affects  tlie  application  of 
a  well-settled  rule^  and  not  the  rule  itself.  In  cases  belong- 
ing to  the  third  and  fourth  classes,  when  a  body  of  persona 
assert  some  claim  against  a  single  distinct  party,  or  con- 
versely a  single  distinct  party  asserts  some  claim  against 
a  body  of  persons,  the  fundamental  question,  upon  which 
the  exercise  of  the  jurisdiction  confessedly  rests,  and  over 

there  is  no  common  title,  no  community  of  interest  in  the  subject-matter 
or  in  the  right,  but  only  a  community  of  interest  in  the  question  at  issue 
or  in  the  remedy  demanded.  In  most  of  them  this  community  among  the  nu- 
merous body  of  interest  in  the  question  and  in  the  remedy  arises  from  the  fact 
that  one  wrongful  act  or  one  legal  injury  was  done  to  all  alike;  but  still  the 
legal  right  of  each  is  wholly  separate  and  distinct.  Tlie  group  of  cases  where 
separate  owners  have  united  to  obtain  relief  against  a  single  nuisance,  or  tres- 
pass, or  evasion  of  water  privileges,  etc.,  are  examples.  The  many  cases 
in  which  separate  lot-owners  have  been  relieved  from  an  illegal  assessment 
imposing  a  lien  upon  their  individual  lands  are  also  examples.  But  even 
this  bond  of  imion  has  not  always  been  present,  nor  always  been  required. 
The  mere  community  of  interest  in  the  question  at  issue  and  in  the  relief 
to  be  obtained  has  been  held  sufficient,  although  the  wrongful  act  done,  the 
injury  inflicted,  was  separate  and  distinct  to  each  individual  of  the  numeroua 
body  of  claimants.  The  celebrated  case  growing  out  of  Schuj'ler's  fraud  in 
making  unlawful  overissues  of  stock  to  different  persons  at  different  times,, 
us  described  under  a  former  paragraph  (see  ante,  §  261),  is  a  striking  illustra- 
tion of  the  power  of  courts  to  disregard  mere  formal  restrictions  for  the  pur- 
pose of  doing  substantial  justice.  I  would  remark,  in  passing,  that  the  court 
which  sustained  this  Schuyler  case  as  a  proper  exercise  of  the  equitable 
jurisdiction  to  prevent  a  multiplicity  of  suits  cannot  with  much  consistency 
refuse  to  relieve  a  body  of  tax-payers  or  separate  lot-owners  from  an  illegal 
tax  or  assessment,  on  the  ground  that  there  is  not  a  sufficient  community  of 
interest  am.ong  them.  The  conclusion  from  the  foregoing  examination  seeni» 
to  be  irresistible,  that  the  test  suggested  by  Mr.  Justice  Nelson  in  the  well- 
known  case  of  Cutting  v.  Gilbert,  5  Blatch.  259,  is  not  supported  by  authority 
or  by  principle.  In  Phelps  v.  City  of  Watertown,  61  Barb.  121,  123,  a  suit  by 
a  single  citizen  and  tax-payer  to  restrain  the  city  officials  from  making  un- 
authorized and  unlawful  contracts  which  would  create  a  public  debt  and  result 
in  additional  taxes  and  assessments,  was  held  not  to  be  witliin  the  equitable 
jurisdiction  of  preventing  a  multiplicity  of  suits.  Johnson,  J.,  said  (p.  123)  : 
"  Nor  is  there  any  ground  to  apprehend  that  the  plaintiff  will  become  involved 
in  a  multiplicity  of  actions  by  the  acts  complained  of,  unless  he  seeks  them 
voluntarily."  So  far  as  this  passage  has  any  meaning  as  an  argument,  it 
implies  that  the  jurisdiction  to  prevent  a  multiplicity  of  suits  will  never 
be  exercised  on  behalf  of  a  plaintiff,  when  he  himself  would  otherwise  be 
obliged  voluntarily  —  that  is,  of  his  own  option  or  choice  —  to  bring  nu- 
merous actions  in  order  to  obtain  justice, —  a  position  which  is  directly 
opposed  to  the  universally  admitted  and  familiar  rules,  since  the  most  im- 
piutunt  biuiich  of  the  jurisdiction  applies  to  parties  in  exactly  that  situation. 


441 


TO   PEEVENT   A   MULTIPLICITY    OF    SUITS. 


§267- 


which  there  has  been  a  direct  antagonism  of  judicial  opinion, 
relates  to  the  nature,  extent,  and  object  of  the  common  in- 
terest which  must  exist  among  the  individual  members  of 
the  numerous  body,  and  between  them  and  their  single  ad- 
versary, in  order  that  a  court  of  equity  may  interfere.  In- 
cidental to  this  main  element,  the  further  question  has  been 
raised,  What  party  is  entitled  to  relief  for  the  purpose  of 
preventing  a  multiplicity  of  suits? — whether  the  plaintiff 
who  invokes  the  aid  of  a  court  upon  that  ground  must  him- 
self be  the  person  who  would  otherwise,  and  against  his  own 
choice,  be  exposed  to  a  repeated  and  vexatious  litigation  ? ' 


(a)  Cases  of  the  "Third  Class" 
Denying  the  Jurisdiction. —  See  Baker 
V.  Portland,  5  Saw.  566,  Fed.  Cas. 
No.  777  (no  "privity  of  interest" 
among  the  complainants)  ;  Scottish 
Union,  etc.,  Ins.  Co.  v.  J.  H.  Mohl- 
man  Co.,  73  Fed.  66;  Thomas  v. 
Council  Bluffs  Canning  Co.,  92  Fed. 
422,  34  C.  C.  A.  428;  Washington 
Co.  V.  Williams,  111  Fed.  801,  49 
C.  C.  A.  621;  Turner  v.  City  of  Mo- 
bile, 135  Ala.  73,  33  South.  133,  147, 
and  the  tax  cases  cited  in  the  notes 
to  §§  265,  266.  But  several  of  these 
cases  may  be  distinguished,  for  the 
reason  that  the  exercise  of  the  juris- 
diction was  unnecessary  or  would  be 
ineffectual,  under  the  principles  of 
§§  25 IV^,  251%,  ante.  Scottish  Union, 
etc.,  Ins.  Co.  v.  J.  H.  Mohlman  Co., 
supra,  was  a  bill  by  several  insurance 
companies  against  the  same  insured 
to  enjoin  actual  or  prospective  suits 
at  law  growing  out  of  the  same  loss, 
to  each  of  which  the  complainants  had 
the  same  defense.  Lacombe,  Cir.  J., 
cited  no  authorities  in  support  of  his 
denial  of  the  jurisdiction,  but  was  of 
the  opinion  that  the  plaintiff  in  the 
suits  at  law,  if  unsuccessful  in  one 
or  two  suits,  would  not  prosecute  the 
other.  For  bills  sustained  under 
circumstances  precisely  similar,  see 
ante,  §  261,  note   (b),  near  beginning 


of  the  note.  Thomas  v.  Council 
Bluffs  Canning  Co.  was  a  bill  by 
numerous  complainants  for  specific 
performance  of  contracts  for  the  sale 
of  their  shares  of  stock.  The  relief 
sought  was  in  substance  pecuniary, 
and  the  court  intimated  that  the 
complainants  might  avoid  a  multi- 
plicity of  legal  actions  equally  as 
well  by  assigning  their  claims  tc  one 
of  their  number.  Washington  County 
V.  Williams  was  a  suit  by  numerous, 
holders  of  an  issue  of  county  bonds, 
payable  from  the  proceeds  of  a  special 
tax,  to  establish  the  validity  of  the 
bonds  and  recover  the  amount  due 
thereon.  Caldwell  and  Thayer,  Cir. 
JJ.  (Sanborn,  Cir.  J.,  dissenting j , 
denied  that  the  jurisdiction  of  equity 
existed  in  such  a  case  on  the  ground 
of  avoiding  a  multiplicity  of  suits; 
but  also  pointed  out  that  a  court  of 
equity  was  powerless  to  grant  com- 
plete relief  in  the  premises,  since  it 
could  not  command  the  levy  of  a  tax, 
and  hence  the  complainants,  even  if 
successful  in  equity,  would  be  com- 
pelled to  resort  to  their  legal  reme- 
dies by  mandamus  in  order  to  enforce 
the  decree.  The  opinion  of  McClel- 
lan,  C.  J.,  in  Turner  v.  City  of  Mo- 
bile contains  a  vigorous  denial  of  the 
jurisdiction  in  case  of  class  third 
where  there  is  no  "  privity  "  among 


267 


EQUITY    JURISPRUDENCE. 


442 


We  have  also  seen,  in  a  certain  class  of  cases  growing  out 
of  some  unauthorized  public  ofificial  act,  the  principle  has 
been  announced  that,  under  the  circumstances,  the  injured 
persons,  citizens,  or  inhabitants  of  a  local  district  had  no 
cause  of  action  of  any  kind,  no  claim  to  any  relief  from  a 
court  of  justice.  This  principle,  which  may  be  correct,  is 
avowedly  based  alone  upon  considerations  of  governmental 
policy  and  public  expediency,  and  has  therefore  no  legiti- 
mate connection  with  the  doctrine  concerning  the  prevention 
of  a  multiplicity  of  suits.  The  principle  has,  however,  in 
some  subsequent  decisions,  been  regarded  and  acted  upon, 
very  improperly  in  my  opinion,  as  though  it  directly  applied 
to,  interfered  with,  abridged,  or  regulated  the  equitable 
jurisdiction  to  prevent  a  multiplicity  of  suits.     The  error 


the  plaintiffs.  The  learned  chief  jus- 
tice clearly  points  out,  however,  as 
we  have  seen  above,  ante,  note  (e)  to 
§  251'/4,  that  the  decision  in  tlie  ease 
is  not  necessarily  at  variance  with 
any  principle  contended  for  by  the 
author,  and  in  making  the  question 
of  jurisdiction  depend  on  the  ques- 
tion of  "  privity,"  ignores  the  early 
decision  of  his  court  in  Morgan  v. 
Morgan,  3  Stew.  (Ala.)  383,  21  Am. 
Dec.  638,  where  any  distinction,  based 
on  "  privity,"  in  bills  of  peace,  is 
expressly  repudiated. 

Cases  which  deny  the  jurisdiction 
in  "  class  third  "  appear  to  be  rela- 
tively more  numerous  than  those  that 
deny  the  jurisdiction  in  "class 
fourth."  In  support  of  such  denial 
of  the  jurisdiction  in  the  former 
class  the  courts,  so  far  as  the  editor 
has  noticed,  content  themselves,  in  the 
main,  with  tlie  dogmatic  assertion 
that  "  the  jurisdiction  to  prevent  a 
multiplicity  of  suits  cannot  properly 
be  invoked  except  by  the  person  who 
may  be  subjected  to  them;"  or  that 
tlie  numerous  plaintiffs  "cannot  in- 
<livi<lually  complain  that  others  are 
compcll(!(l  to  sue,  for  tliey  have  no 
nli;irc    ill    tlic   cxpciiHe   or   vexation   of 


each  other's  suits."  A  convincing 
answer  to  this  objection  may  be  found 
in  the  two  considerations  clearly  set 
forth  in  Smith  v.  Bank  of  New  Eng- 
land, 69  N,  H.  254,  45  Atl.  1082,  by 
Carpenter,  C.  J. :  "  For  the  deter- 
mination of  one  issue  the  public  must 
provide  seventy-nine  sessions  of  the 
court  and  seventy-nine  juries.  In 
sliort,  a  single  issue,  upon  which  tlie 
rights  of  all  parties  interested  in  the 
controversy  depend,  must  be  tried 
seventy-nine  times,  and  the  parties 
and  the  public  be  subjected  to  the 
worse  than  useless  expense  of  seventy- 
eight  trials.  ...  A  speedy  and 
inexpensive  adjudication  of  their 
common  right  is  quite  as  important 
to  the  numerous  plaintiffs  as  to  the 
single  defendant,  and  it  may  be  much 
more  so.  Cases  may  often  happen 
where  a  rejection  of  their  application 
for  equitable  intervention  to  prevent 
a  multiplicity  of  suits  would  operate 
practically  as  a  denial  of  justice. 
Suppose,  e.  g.,  that  each  of  one  hun- 
dred persons  held  an  interest  coupon 
for  .$(),  on  bonils  issued  by  a  town  or 
otlior  corporation,  and  that  the  only 
controverted  question  was  as  to  the 
validity  of  tlie  bonds.     Each  coupon- 


443 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§268 


involved  in  the  mingling  of  two  entirely  distinct  matters 
has,  I  think,  been  shown  with  sufficient  clearness  in  a  pre- 
vious note. 

§  268.  Conclusions  as  to  the  Third  and  Fourth  Classes." — 
From  a  careful  comparison  of  the  actual  decisions  em- 
braced in  the  third  and  fourth  classes,  and  which  are 
quoted  under  the  foregoing  paragraphs,  the  following  prop- 
ositions are  submitted  as  established  by  principle  and 
by  authority,  and  as  constituting  settled  rules  concerning 
this  branch  of  the  equitable  jurisdiction.  In  that  par- 
ticular family  of  suits,  whether  brought  on  behaJf  of  a 
numerous  body  against  a  single  party,  or  by  a  single  party 
against  a  numerous  body,  which  are  strictly  and  technically 
' '  bills  of  peace, ' '  in  order  that  a  court  of  equity  may  grant 
the  relief  and  thus  exercise  its  jurisdiction  on  the  ground 
of  preventing  a  multiplicity  of  suits,  there  does  and  must 
exist  among  the  individuals  composing  the  nmnerous  body, 


holder  would  have  a  clear  and,  in  a 
legal  sense,  an  adequate  remedy  at 
law.  But  if  he  recovered  in  an  ac- 
tion at  law,  he  would  realize  nothing, 
as  the  necessary  expenses  of  the  suit 
would  exceed  the  amount  recovered. 
If,  on  the  other  hand,  the  question 
were  determined  in  one  suit,  each 
might  realize  substantially  the  amount 
of  his  demand.  To  hold  that  equity 
will  intervene  in  behalf  of  the  cor- 
poration, but  not  in  behalf  of  the 
coupon-holders,  to  compel  the  issue 
to  be  tried  in  one  suit,  would  bring 
deserved  reproach  upon  the  admin- 
istration of  justice." 

Indeed,  the  conjecture  may  be 
hazarded  that  the  denial  of  the  juris- 
diction may  frequently  effect  a 
greater  practical  injustice  in  cases  of 
"  class  third  "  than  in  most  cases  of 
class  fourth.  In  a  typical  case  of 
class  fourth,  where  the  single  party 
is  assailed  by  numerous  suits  involv- 
ing the  same  issues,  a  determination 
>if  one  or  a  few  of  these  in  his  favor 


will  generally,  perhaps,  result  in  the 
abandonment  of  the  others,  even 
without  the  interposition  of  equity; 
while  in  very  many  cases  of  class 
third,  the  burden  of  a  single  great 
wrong  is  made  to  fall  upon  a  large 
number  of  individuals,  few  of  whom 
can,  unaided,  afford  the  expense  of 
litigation,  and  thus  practical  immu- 
nity is  secured  for  the  wrong-doer. 
See  the  forcible  observations  of 
Walker,  J.,  in  Greedup  v.  Franklin 
County,  30  Ark.  101,  quoted  ante, 
note   (d)   to  §  260. 

(a)  This  section  is  cited  in  Wash- 
ington County  V.  Williams,  111  Fed. 
801,  815,  49  C.  C.  A.  621,  dissenting 
opinion  of  Sanborn,  Cir.  J. ;  in  Barton 
Nat.  Bank  v.  Atkins,  72  Vt.  33,  47 
Atl.  176;  Osborne  v.  Wisconsin  Cent. 
R.  Co.,  43  Fed.  824,  by  Harlan, 
J.,  cases  illustrating  the  "  third 
class;"  in  City  of  Albert  Lea  v.  Niel- 
sen, 83  Minn.  240,  86  N.  W.  83,  a 
case  of  the  "  fourth  class." 


§  268  EQUITY   JURISPRUDENCE.  444 

or  between  each  of  them  and  their  single  adversary,  a  com- 
mon right,  a  community  of  interest  in  the  subject-matter  of 
the  controversy,  or  a  common  title  from  which  all  their 
separate  claims  and  all  the  questions  at  issue  arise ;  it  is  not 
enough  that  the  claims  of  each  individual  being  separate 
and  distinct,  there  is  a  community  of  interest  merely  in  the 
question  of  law  or  of  fact  involved,  or  in  the  hind  and  form 
of  remedy  demanded  and  obtained  by  or  against  each  indi- 
vidual.^ The  instances  of  controversies  between  the  lord 
of  a  manor  and  his  tenants  concerning  some  general  right 
claimed  by  or  against  them  all  arising  from  the  custom  of 
the  manor,  or  between  a  parson  and  his  parishioners  con- 
cerning tithes  or  a  modus  affecting  all,  and  the  like,  are 
examples.  It  must  be  admitted,  as  a  clear  historical  fact, 
that  at  an  early  period  the  court  of  chancery  confined  this 
branch  of  its  jurisdiction  to  these  technical  **  bills  of  peace. "" 
The  above  rule,  as  laid  down  in  them,  was  for  a  consider- 
able time  the  limit  beyond  which  the  court  would  not  exercise 
its  jurisdiction  in  cases  belonging  to  the  third  and  fourth 
classes.  For  this  reason  many  passages  and  dicta  found 
in  the  judicial  opinions  of  that  day  must  be  regarded  as 
merely  expressing  the  restrictive  theory  which  then  pro- 
vailed  in  the  court  of  chancery,  and  as  necessarily  modified 
by  the  great  enlargement  and  extension  of  the  jurisdiction 
which  has  since  taken  place;  and  at  all  events,  these  dicta 
and  incidental  utterances  should,  on  any  correct  principle 
of  interpretation,  be  treated  as  confined,  and  as  intended  to 
be  confined,  to  the  technical ''  bills  of  peace  "  in  which  they 
occurred,  or  concerning  which  they  were  spoken.  Notwith- 
standing this  general  theory  of  the  jurisdiction  which  pre- 
vailed at  an  early  period,  it  is  certain  that  even  then  the 
court  sometimes  transcended  the  arbitrary  limit,  and  exer- 
cised the  jurisdiction,  where  there  was  no  pretense  of  any 
community  of  right,  or  title,  or  interest  in  the  subject- 
matter. 

(b)    Quoted,   Carlton    v.   Nowman,   77   Me.   408,    1   Atl.    194;    Zahnhizer   v. 
ITcfnfT,  47  W.  Vn.  48,  35  S.  E.  4. 


445  TO   PREVENT   A   MUIiTIPLICITY   OF   SUITS.  §  269 

§  269."  This  early  theory  has,  however,  long  been 
abandoned.  The  jurisdiction,  based  uj^on  the  prevention  of 
a  multiplicity  of  suits,  has  long  been  extended  to  other 
cases  of  the  third  and  fourth  classes,  which  are  not  tech- 
nically''bills  of  peace,  "but  ''are  analogous  to  "  or  "within 
the  principle  of  "  such  bills.  Under  the  greatest  diversity 
of  circumstances,  and  the  greatest  variety  of  claims  arising 
from  unauthorized  public  acts,  private  tortious  acts,  inva- 
sion of  property  rights,  violation  of  contract  obligations, 
and  notwithstanding  the  positive  denials  by  some  American 
courts,  the  weight  of  authority  is  simply  overwhelming  that 
the  jurisdiction  may  and  should  be  exercised,  either  on  be- 
half of  a  numerous  body  of  separate  claimants  against  a 
single  party,  or  on  behalf  of  a  single  party  against  such  a 
numerous  body,  although  there  is  no  "  common  title,"  nor 
^'  community  of  right  "  or  of  "  interest  in  the  subject- 
matter,"  among  these  individuals,  but  where  there  is  and 
because  there  is  merely  a  community  of  interest  among 
them  in  the  questions  of  law  and  fact  involved  in  the  general 
controversy,  or  in  the  kind  and  form  of  relief  demanded  and 
obtained  by  or  against  each  individual  member  of  the 
numerous  body.*"    In  a  majority  of  the  decided  cases,  this 

(a)   This  section  is  cited  with  ap-  20   S.   E.   778;    Bosher  v.   Richmond, 

proval   in   San   Lung  v.   Jackson,   85  etc..  Land  Co.,  89  Va.  455,  16  S.  E. 

Fed.  502;   Liverpool  &  L.  &  G.   Ins.  3G0,  37  Am.  St.  Rep.  879.     All  these 

€o.  V.  Clunie,  88  Fed.  160,  167;  Vir-  are    cases    illustrating    the    author's 

ginia-Carolina  Chemical  Co.  v.  Home  "  third  class." 

Ins.  Co.,   113  Fed.  1,  5;   W^ashington  This  section  is  cited  with  approval 

County  V.  Williams,  111  Fed.  801,  815,  in   De   Forest  v.  Thompson,   40   Fed. 

49   C.   C.   A.   621,  dissenting  opinion  375;   United  States  v.  Southern  Pac. 

of  Sanborn,  Cir.  J.;  Osborne  v.  Wis-  R.   Co.,   117    Fed.   544,   554;    Wyman 

consin  Cent.  R.  Co.,  43  Fed.  824,  by  v.    Bowman,     (C.    C.    A.),    127    Fed. 

Harlan,  J.;   Dumars  v.  City  of  Den-  257,  264;  Farmington  Corp.  v.  Bank, 

ver  (Colo.  App.),  65  Pac.  580;  Macon,  85  Me.  46,  52,  26  Atl.  965;   Kellogg 

etc.,    R.    Co.    v.    Gibson,    85    Ga.    1,  v.    Chenango    Valley    Sav.    Bank,    42 

11   S.  E.  442,  21  Am.  St.  Rep.   134;  N.  Y,  Supp.  379,   11  App.  Div.  458; 

Indiana,  I.  &  I.  R.  Co.  v.  Svvannell,  cases  of  the  fourth  class. 

157  111.  616,  41  N.  E.  989,  30  L.  R.  A.  (b)   Quoted  with  approval,  Carlton 

290,  297;   Barton   Nat.   Bank  v.   A<-  v.  Newman,  77  Me.  408,  1  Atl.   194; 

kins,  72  Vt.  33,  47  Atl.   176;   Carey  Keese  v.  City  of  Denver,  10  Colo.  113, 

V.  CofTee-Stemming  Mach.  Co.   (Va.),  15  Pac.  825;   Smith  v.  Bank  of  New 


§  269  EQUITY    JURISPRUDENCE.  44S 

community  of  interest  in  the  questions  at  issue  and  in  the 
kind  of  relief  sought  has  originated  from  the  fact  that  the 
separate  claims  of  all  the  individuals  composing  the  body 
arose  by  means  of  the  same  unauthorized,  unlawful,  or 
illegal  act  or  proceeding.  Even  this  external  feature  of 
unity,  however,  has  not  always  existed,  and  is  not  deemed 
essential.  Courts  of  the  highest  standing  and  ability  have 
repeatedly  interfered  and  exercised  this  jurisdiction,  where 
the  individual  claims  were  not  only  legally  separate,  but 
were  separate  in  time,  and  each  arose  from  an  entirely 
separate  and  distinct  transaction,  simply  because  there 
was  a  community  of  interest  among  all  the  claimants  in  the 
question  at  issue  and  in  the  remedy.*"  The  same  overwhelm- 
ing weight  of  authority  effectually  disposes  of  the  rule  laid 
down  by  some  judges  as  a  test,  that  equity  will  never  exer- 
cise its  jurisdiction  to  prevent  a  multiplicity  of  suits,  unless 
the  plaintiff,  or  each  of  the  plaintiffs,  is  himself  the  person 
who  would  necessarily,  and  contrary  to  his  own  will,  be 
exposed  to  numerous  actions  or  vexatious  litigation.  This 
position  is  opposed  to  the  whole  course  of  decision  in  suits 
of  the  third  and  fourth  classes  from  the  earliest  period 
down  to  the  present  time.''     AVhile  the  foregoing  conclusions 

England,  69  N.  H.  254,  45  Atl.  10S2,  or     interest     in     tlie     subject-matter 

cases  of  the  "third  class;"  Corey  v.  among    such    defendants,    but    where 

Sherman,  96  Iowa,  114,  64  N.  VV.  S28,  there    is    a    community    of    interest 

32  L.  R.  A.  490,  509,  case  of  a  single  among  them  in  the  questions  of  law 

plaintifT  suing  in  belialf  of  a  numer-  and  fact  involved  in  the  general  con- 

ous  body;   Louisville,  N.  A.  &  C.  R.  troversy."       Hale    v.    Allinson,     188 

Co.  v.  Oliio  v.  I.  &  C.   Co.,  57   Fed.  U.  S.  50,  23  Sup.  Ct.  244,  252. 
42,  45;  Smith  v.  Dobbins,  87  Ga.  303,  (c)   Quoted  with  approval  in  Lock- 

13   S.   E.  496;    Siever  v.  Union   Pac.  wood    County    v.    Lawrence,    77    Me. 

R.  Co.    (Nebr.),  93  N.  \V.  943,  cases  297,  309,  52  Am.  Rep.  703,  a  ease  of 

of     the     "fourth     class;"     Hale     v.  the  "third  class;"  Corey  v.  Sherman, 

Allinson,  102  Fed.  790,  791,  792,  dis-  96  Iowa,  114,  64  N.  W.  828,  32  L.  R. 

tinguishing  the  "  fourth  class."    "We  A.  490,  509,  case  of  a  single  plaintilf 

are  not  dispo.scd  to  deny  that  juris-  suing  in  behalf  of  a  numerous  body; 

diction  on  the  ground   of  preventing  Louisville,  N.   A.  &  C.   R.   R.   Co.  v. 

a  multiplicity  of  suits  may  be  exer-  Oliio  Val.  I.  &  C.  Co.,  57  Fed.  42,  45, 

ci.Hcrl    in   many   cases  on   liehalf   of  a  a  case  of  the  "  fourth  class." 
fiingle  complainant  against  a  number  (d)   Quoted  with  approval  in  Carl- 

of    defendants,    although    there    is   no  ton   v.    Newman,   77    Me.   408,   414,    1 

coiMiiion  title  or  ciMiiinunity  of  rights  Atl.   194,  a  case  of  the  "  third  class." 


447  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  269 

are  supported  by  the  great  weight  of  judicial  authority, 
they  are,  in  my  opinion,  no  less  clearly  sustained  by  prin- 
ciple. The  objection  which  has  been  urged  against  the  pro- 
priety or  even  possibility  of  exercising  the  jurisdiction, 
either  on  behalf  of  or  against  a  numerous  body  of  separate 
claimants,  where  there  is  no  **  common  title,"  or  community 
*'  of  right  "  or  *'  of  interest  in  the  subject-matter,"  among 
them,  is,  that  a  single  decree  of  the  court  cannot  settle  the 
rights  of  all ;  the  legal  position  and  claim  of  each  being 
entirely  distinct  from  that  of  all  the  others,  a  decision  as  to 
one  or  some  could  not  in  any  manner  bind  and  dispose  of 
the  rights  and  demands  of  the  other  persons,  and  thus  the 
proceeding  must  necessarily  fail  to  accomplish  its  only 
purpose, —  the  prevention  of  further  litigation.  This  ob- 
jection has  been  repeated  as  though  it  were  conclusive;  but 
like  so  much  of  the  so-called  *'  legal  reasoning  "  traditional 
in  the  courts,  it  is  a  mere  emjDty  formula  of  words  without 
any  real  meaning,  because  it  has  no  foundation  of  fact, — 
it  is  simply  untrue;  one  arbitrary  rule  is  contrived  and  then 
insisted  upon  as  the  reason  for  another  equally  arbitrary 
rule.^  The  sole  and  sufficient  answer  to  the  objection  is 
found  in  the  actual  facts.  The  jurisdiction  has  been  exer- 
cised in  a  great  variety  of  cases  where  the  individual  claim- 
ants were  completely  separate  and  distinct,  and  the  only  com- 
munity of  interest  among  them  was  in  the  question  at  issue 
and  perhaps  in  the  kind  of  relief,  and  the  single  decree  has 
without  any  difficulty  settled  the  entire  controversy  and 
determined  the  separate  rights  and  obligations  of  each  indi- 

(e)   "  It  is  true  that  there  are  oc-  exist.     And,  indeed,  it  is  difficult  to 

casional  cases  where  it  seems  to  have  find    any    reason    why    it    should    be 

been    supposed    that    there    must    be  thought   necessary.      It    has  no   rele- 

some   community   of   interest, —  some  vancy  to  the  principle  or  purpose  of 

tie  between  the  individuals  who  make  the  doctrine  itself,  which  stands  not 

up  the  great  number;  but  the  great  merely  as  a  makeweight  when  other 

weight  of  authority  is  to  the  contrary  equities  are  present,  but  as  an  inde- 

and    there    is    a    multitude    of    cases  pendent    and    substantive   ground    of 

which  either  in  terms  deny  the  necea-  jurisdiction."     Bailey  v.   Tillinghast, 

sity  of  such   a   fact   or   ignore  it  by  (C.  C.  A.),  99  Fed.  801,  807. 
granting  relief  where  the  fact  did  not 


"§  270  EQUITY   JURISPRUDENCE.  448 

vidual  claimant.^  The  same  principle  therefore  embraces 
both  the  technical  **  bills  of  peace,"  in  which  there  is  con- 
fessedly a  common  right  or  title  or  community  of  interest  in 
the  subject-matter,  and  also  those  analogous  cases  over 
which  the  jurisdiction  has  been  extended,  in  which  there  is 
no  such  common  right  or  title  or  community  of  interest  in 
the  subject-matter,  but  only  a  community  of  interest  in  the 
•question  involved  and  in  the  kind  of  relief  obtained,' 

§  270.*  A  few  additional  words  may  be  proper  with  re- 
spect to  the  exercise  of  the  jurisdiction  on  behalf  of  tax- 
payers and  other  members  of  a  local  district  or  community 
affected  by  an  unlawful  common  or  public  burden.  Where- 
ever  the  principle  has  been  finally  settled  that  individual 
citizens  or  members  of  a  municipality  sustaining  an  injury 
from  some  unauthorized  or  illegal  official  act,  in  common 
with  all  the  other  citizens  or  members  of  the  same  district, 
—  that  is,  only  suffering  the  same  wrong  or  loss  which  is 
inflicted  upon  all  other  like  persons, —  have  no  cause  of 
action  whatever,  no  remedial  right  recognized  by  any  court 
of  justice,  there  can,  of  course,  be  no  exercise  on  their  behalf 
of  the  equitable  jurisdiction  to  prevent  a  multiplicity  of 
suits.  And  if  the  principle  is  held  to  embrace  tax-payers, 
they  are  also  without  any  equitable  relief.     But  it  is  a  grave 

1  Wliile  this  result  has  been  accomplished  in  the  Schuyler  fraud  case,  17 
N.  Y.  592,  in  the  water  company  case,  L.  R.  2  Ch.  8,  in  the  case  of  the  com- 
plicated contract,  7  N.  J.  Eq.  440,  and  in  other  like  instances  where  the 
separate  demands  of  the  claimants  had  no  common  origin,  but  each  arose 
from  a  distinct  transaction,  and  in  the  various  tax-payers'  cases,  it  is  plain 
that  the  objection  under  consideration  is  merely  illusory;  that  it  is  truly 
what  I  have  called  it,  an  empty  formula  of  words  without  any  real  meaning. 
Much  of  this  a  priori  reasoning  explaining  why  a  particular  thing  couM 
not  be  done,  repeated  by  judge  after  judge,  has  in  like  manner  been  exploded 
simply  by  doing  the  thing  which  had,  through  verbal  logic,  been  shown  to 
be  irii possible.  Tliis  one  fact  is  the  essence  of  a  great  deal  of  the  modern 
Jegal  reform. 

(f)    This    passage   of   the    text    is  (a)   Tliis  section  is  cited  in  Allen 

Tjuotc'd    with    approval    in    Siever    V.  v.  Intendant,  etc.,  of  La  Fayette,  89 

Union    P.ic.    R.    R.    Co.    (Nebr.),   93  Ala.  641,  8  South.  30. 
N.  W.  94.3. 


449  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  270 

«rror  to  suppose  that  this  doctrine  has  any  special  connec- 
tion with  the  equitable  jurisdiction  to  prevent  a  multiplicity 
of  suits,  or  in  any  special  manner  restricts  that  jurisdiction. 
Being  based  upon  high  considerations  of  governmental 
policy,  it  avowedly  overrides  and  displaces  all  judicial 
authority,  every  form  of  judicial  action.  Wherever,  on  the 
other  hand,  the  tax-payers  of  a  district  subject  to  an  un- 
lawful burden  are  regarded  as  having  some  cause  of  action, 
as  entitled  to  some  judicial  remedy, —  as,  for  example, 
where  the  individual  tax-payer  may  maintain  an  action  at 
law  to  recover  back  the  illegal  tax  which  he  has  paid,  or  to 
recover  damages, —  there,  in  my  opinion,  all  the  reasons  for 
exercising  the  jurisdiction  to  prevent  a  multiplicity  of 
suits  in  any  case  of  the  third  or  fourth  classes  apply  with 
great  and  convincing  force  in  support  of  the  same  juris- 
diction in  behalf  of  such  tax-payers.  Notwithstanding  the 
adverse  decisions,  the  weight  of  judicial  authority  in  favor 
of  this  conclusion,  and  of  exercising  the  jurisdiction  under 
every  form  of  local  assessment,  general  tax,  municipal  debt, 
or  other  public  burden  by  which  taxation  would  be  increased, 
is  very  decided.^  On  principle,  no  distinction  can  be  dis- 
covered between  the  case  of  such  tax-payers,  and  the 
instances  in  which  the  jurisdiction  has  been  repeatedly 
exercised  and  fully  established  on  behalf  of  a  common  body 
of  separate  claimants.  Each  tax-payer  has  a  remedy  by 
action  at  law;  but  it  is  to  the  last  degree  inadequate  and 
imperfect,  and  often  nominal,  since  he  must  wait  until  the 
wrong  has  been  accomplished  against  himself  before  he 
can  obtain  redress ;  and  at  best,  the  rights  of  all  can  only  be 

1  This  weight  of  authority  becomes  even  more  imposing  from  the  fact  that 
in  New  York,  and  in  several  other  states  whose  courts  have  followed  the 
lead  of  New  York  tribunals,  the  denial  of  relief  to  the  tax-payers  has  been 
based,  in  part  at  least,  upon  the  principle  of  public  policy  mentioned  above 
in  the  text,  by  virtue  of  which  individual  tax-payers  were  held  to  be  with- 
out any  remedial  right.  The  adoption  of  this  principle  at  once  ended  all 
possibility  of  judicial  interference;  and  these  decisions  have  therefore  no 
legitimate  authority  upon  the  question  as  to  the  equitable  jurisdiction  to 
prevent  a  multiplicity  of  suits  being  exercised  on  behalf  of  tax-payers. 

Vol.  1  —  29 


§  271  EQUITY   JURISPRUDENCE.  450 

secured  even  in  this  incomplete  maimer  by  an  indefinite 
number  of  litigations.  By  means  of  the  equitable  jurisdic- 
tion, the  whole  controversy  and  the  rights  of  every  indi- 
vidual tax-payer  can  be  finally  determined  in  one  judicial 
proceeding  by  one  judicial  decree.  This  is  not  a  plausible 
theory;  it  is  a  fact  demonstrated  in  the  constant  judicial  ex- 
perience of  numerous  states.^ 

§  271.  Cases  in  Which  the  Jurisdiction  is  Exercised  —  First 
Class."—  Having  thus  examined  the  meaning,  extent,  and 
operation  of  the  doctrine,  I  shall  enumerate,  without  any 
further  description,  the  various  kinds  of  cases  in  which  the 
jurisdiction  to  prevent  a  multiplicity  of  suits  has  been 
exercised,  and  over  which  it  has  been  settled  by  a  prepon- 
derance of  judicial  authority.  Class  first. —  The  jurisdic- 
tion is  constantly  exercised,  under  a  proper  condition  of 
facts,  in  the  following  instances  belonging  to  the  first  class : 
Suits  by  a  proprietor  to  restrain  continuous  trespasses ;  * " 

2  Can  it  appear  to  the  thoughtful  observer  otherwise  than  as  a  farce  or 
travesty  upon  the  administration  of  justice,  to  see  a  court  deny  all  relief  to 
a  body  of  tax-payers  suing  in  the  form  of  an  equitable  action  to  restrain  an 
illegal  tax,  or  to  set  aside  an  illegal  official  act,  such  as  a  town  bonding, 
for  the  alleged  reasons  that  their  interests  were  separate,  and  could  not  be 
determined  by  one  decree,  and  then  to  see  the  self-same  judges,  on  behalf  of 
the  same  tax-payers  in  the  same  case,  and  upon  exactly  the  same  facts  set 
forth  in  a  petition,  grant  the  very  identical  relief,  and  set  aside  the  tax  or 
official  act,  by  their  adjudication  made  upon  a  writ  of  certiorari  ?b  We  may 
still  hope  that  the  time  will  come,  in  the  progress  of  an  enlightened  legal  re- 
form, when  the  administration  of  justice  will  be  based  entirely  upon  con- 
siderations of  substance,  and  not  of  mere  form.  The  reformed  system  of  pro- 
cedure as  it  is  administered  by  some  courts  has  left  much  room  for  further 
improvement  in  the  modes  of  obtaining  justice. 

1  Hanson  v.  Gardiner,  7  Yes.  305,  309,  310;  Livingston  v.  Livingston,  6 
Johns.  Ch.  497,  500,  10  Am.  Dec.  353;  Hacker  v.  Barton,  84  111.  313. 

§    270,    (1»)    Quoted    in    Equitable  Nichols  v.  Jones,  19  Fed.  855;  Boston 

Guarantee  &  T.  Co.  v.  Donahoe(Del.),  &  M.  R.  R.  Co.  v.  Sullivan,  177  Mass. 

45  Atl.  583.  230,  83  Am.  St.  Rep.  275,  58  N.  E. 

§  271,  (a)  This  section  is  cited  in  GS9 ;    Davis  v.   Frankenlust  Tp.,   118 

Pretcca  v.  Maxwell   Land  Grant  Co.,  Mich.   494,   76   N.   W.   1045;    Warren 

(C.  C.  A.),  50  Fed.  (!74.  Mills  v.  N.  0.  Seed  Co.,  05  Miss.  391, 

§  271,  (b)  See  aiite,  §  252;  Carney  7   Am.   St.   Rep.   G71,  4   South.   298; 

v.  H.-ullcy,  32  Fla.  344,  14  South.  4,37  Birmingham  Traction  Co.  v.  S.  B.  T. 

Am.  St.   K.p.    101.  22   L.   R.  A.  233;  &    T.    Co..    119    Ala.    144,   24    South. 


451  TO   PREVENT   A    MULTIPLICrTY   OP    STJITS.  §  272" 

to  restrain  and  remove  private  nuisances,  especially  when^ 
they  are  infringements  upon  some  easement,  as  a  water 
right ;^''  to  restrain  waste;'  and  to  settle  disputed  bound- 
aries.* The  jurisdiction  has  also  been  admitted,  under 
special  circumstances,  to  settle  the  entire  controversy  be- 
tween two  parties  growing  out  of  some  complicated  contract 
involving  numerous  questions  and  many  actions  at  law."  * 
§  272.  Second  Class. —  In  cases  belonging  to  the  first 
branch  of  this  class,  the  rule  is  familiar  that  the  court  will 
interfere  to  restrain  actions  of  ejectment  to  recover  the 
same  tract  of  land  when  the  plaintiff's  title  has  already 
been    sufficiently    established   at    law;^'    and    to    restrain 

2  Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545,  551;  Carlisle  v.  Cooper,.. 
21  N.  J.  Eq.  576,  579;  Corning  v.  Troy  Iron  Factory,  39  Barb.  311,  327,  34 
Barb.  485,  492 ;  Webb  v.  Portland  Mfg.  Co.,  3  Sum.  189 ;  Lyon  v.  McLaughlin, 
32  Vt.  423,  425,  426;  Sheetz's  Appeal,  35  Pa.  St.  88,  95;  Holsman  v.  Boiling- 
Spring  Co.,  14  N.  J.  Eq.  335;  Sheldon  v.  Rockwell,  9  Wis.  166,  179,  76  Am.. 
Dec.  265;  Eastman  v.  Amoskeag,  etc.,  Co.,  47  N.  H.  71,  79,  80;  and  restrain- 
ing an  interference  with  plaintiff's  exclusive  ferry  franchise:  McRoberts  Vo. 
Washburne,  10  Minn.  23,  30;  Letton  v.  Goodden,  L.  R.  2  Eq.  123,  130.  Also,, 
such  nuisance  is  restrained  at  the  suit  of  numerous  separate  proprietors, 
where  each  is  injured  by  it  in  his  own  land:  Cardigan  v.  Brown,  120  Mass» 
493,  495;  Ballou  v.  Inhabitants  of  Hopkinton,  4  Gray,  324,  328;  Murray  v. 
Hay,  1  Barb.  Ch.  59,  43  Am.  Dec.  773;  Reid  v.  Gifford,  Hopk.  Ch.  416,  419,  420.. 

3  Hughlett  V.  Harris,  1  Del.  Ch.  349,  352,  12  Am.  Dec.  104. 

4  Hill  V.  Proctor,  10  W.  Va.  59,  77. 

SBiddle  v.  Ramsey,  52  Mo.  153,  159;  Black  v.  Shreeve,  7  N.  J.  Eq.  440,. 
456,  457 ;  for  limitations  upon  the  jurisdiction  in  such  cases,  see  Richmond 
V.  Dubuque,  etc.,  R.  R.,  33  Iowa,  422,  487,  488,  per  Beck,  C.  J. 

1  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261,  10  Mod.  1,  I  Brown  Pari.  C.  266, 
270,  2  Brown  Pari.  C.,  Tomlins's  ed.,  217;  Leighton  v.  Leighton,  1  P.  Wmg.. 

731;  Golden  V.  Health  Dept.,  47  N.Y.  Val.   R.    Co.,    156   N.   Y.   451,   51    N. 

Supp.  623,  21  App.  Div.  420;  Hall  v.  E.  301,  affirming  48  N.  Y.  Supp.  511, 

Sugo,   61    N.  Y.   Supp.   770,   46   App.  24  App.  Div.  273;  and  Pom.  Eq.  Rem.,. 

Div.  632;  Olivella  v.  New  York  &  H.  "Injunction  against  Nuisance." 
R.    Co.,    64    N.    Y.    Supp.    1086,    31  (d)    Ante,  §§  252,  263,  and  notes.. 

Misc.  Rep.  203;   Gibbs  v.  McFadden,  See  also  Stovall  v.  McCutcheon,   107 

39  Iowa,  371;   Ten  Eyck  v.  Sjoburg,  Ky.    577,    92    Am.    St.    Rep.    373,    54 

68  Iowa,  625,  27  N.  W.  785.     For  ad-  S.  W.  969,  47  L.  R.  A.  287;   Shinier 

ditional  cases,  consult  Pom.  Eq.  Rem.,  v.  Morris   Canal   &  B.   Co.,  27   N.  J.. 

'"Injunction  again.st  Trespass."  Eq.  364;  Peterson  v.  Fleming,  63  111.. 

(c)    See  ante,   §  252;    Campbell  v.  App.  357. 
Seaman,   63  N.  Y.  568,  20  Am.  Rep.  (a)   Ante,  §§  248,  253;  Holland  v. 

567,  where  the  nuisance  consisted  of  Challen,  110  U.  S.  15,  19,  3  Sup.  Ct. 

a   brick   kiln;    Coatsworth  v.   Lehigh  495;  Sharon  v.  Tucker,  144  U.  S.  542, 


I  273  EQUITY   JURISPRUDENCE.  452 

further  or  successive  actions,  not  of  ejectment,  brought  for 
the  same  matter,  when  the  plaintiff's  rights  have  already 
been  fully  established  in  some  prior  judicial  proceeding 
between  the  same  parties.^''  In  cases  constituting  the  sec- 
ond branch  of  this  class,  the  court  may  restrain  numerous 
simultaneous  actions  against  the  plaintiff  brought  by  the 
same  defendant,  all  involving  the  same  questions,  for  the 
purpose  of  having  the  whole  decided  by  one  trial  and  de- 
cree. The  court  will  not  interfere,  however,  when,  by  the 
rules  of  legal  procedure,  all  the  actions  can  be  consoli- 
dated by  order  of  the  court  of  law.^ " 

§  273.  Third  Class.* —  The  cases  constituting  this  class 
must  be  separated  into  several  different  groups,  all  depend- 

€71;  Devonsher  v.  Newenham,  2  Schoales  &  L.  208,  209;  Weller  v.  Smeaton, 
1  Cox,  102,  1  Brown  Ch.  573;  Earl  of  Darlington  v.  Bowes,  1  Eden,  270,  271; 
Alexander  v.  Pendleton,  8  Cranch,  462,  468;  Trustees  of  Huntington  v.  Nicoll, 
3  Johns.  566,  589,  590,  591,  595,  601,  602;  Eldridge  v.  Hill,  2  Jolms.  Ch.  281; 
Woods  V.  Monroe,  17  Mich.  238;  Bond  v.  Little,  10  Ga.  395,  400;  Harmer  v. 
Crwynne,  5  McLean,  313,  315;  Patterson  v.  McCamant,  28  Mo.  210;  Knowlea  v. 
Inches,  12  Cal.  212. 

2  Paterson,  etc.,  R.  R.  v.  Jersey  City,  9  N.  J.  Eq.  434. 

3  Kensington  v.  White,  3  Price,  164,  167;  Third  Ave.  R.  R.  Co.  v.  Mayor, 
etc.,  of  New  York,  54  N.  Y.  159,  162,  163.  But  see,  per  contra,  West  v.  Mayor, 
etc.,  of  New  York,  10  Paige,  539. 

12    Sup.   Ct.   720;    Dishong   v.    Fink-  S.  W.  649;  Davis  v.  Fasig,  128  Ind. 

biner,  46  Fed.  12,  16;  Pratt  v.  Ken-  271,  27  N.  E.  726;  City  of  Rushville 

dig,  128  111.  293,  21  N.  E.  495.  v,    Rushville    Natural    Gas    Co.,    132 

(b)  Ante,  §  253 ;  Bank  of  Kentucky  Ind.  575,  28  N.  E.  853,  15  L.  R.  A. 
V.  Stone,  88  Fed.  383;  Union  &  321;  Joseph  Schlitz  Brewing  Co.  v. 
Planters'  Bank  v.  Memphis,  111  Fed.  City  of  Superior,  117  Wis.  297,  93 
561,  49  C.  C.  A.  455;  Siever  v.  Union  N.  W.  1120;  Milwaukee  El.  R.  &  L. 
Pac.  R.  Co.  (Nebr.),  93  N.  W.  943.  Co.  v.  Bradley,  108  Wis.  467,  84  N. 

(c)  Ante,  §  254,  and  notes.  See  W.  870.  Per  contra,  see  Poyer  v, 
Cuthbcrt  v.  Chauvet,  60  Hun,  577,  14  Village  of  Des  Plaines,  123  111.  Ill, 
N.  Y,  Supp.  385,  20  Civ.  Proc.  Rep.        13   N.   E.   819,  5  Am.   St.  Rep.   494; 

-391;  Norfolk  &  N.  B.  Hosiery  Co.  v.  Chicago,  B.  &  Q.  R.  R.  Co.  v.  City  of 

Arnold,  143  N.  Y.  205,  38  N.  E.  271;  Ottawa,    148   III.   397,   36   N.   E.   85; 

Galveston,    H.    &    S.    A.    R'y    Co.    v.  Yates  v.   Village   of  Batavia,   79   111. 

Dowe,    70    Tex.    5,    7     S.    \V.    368;  500;     Cleland    v.    Campbell,    78    111. 

Fcatherstone  v.  Carr,  132  N.  C.  800,  App.  024;  Ewing  v.  City  of  Webster 

44  S.  E.  692;  City  of  Hutchinson  v.  City,  103  Iowa,  226,  72  N.  W.  511. 

Beckham,    (C.  C.  A.)    118   Fed.   399;  (a)  This  section  is  quoted  in  full  in 

•Sylvester    County   v.    St.    Louis,    130  Tumor   v.   City   of   Mobile,    135   Ala. 

llo.    323,    51    Am.    St.    INp.    560,    .32  73,    33    South.    133,    142;    and    cited 


453  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §  273 

ing,  however,  upon  the  same  principle.  The  jurisdiction  is 
exercised  in  suits  brought  by  iiumerous  persons  to  establish 
their  separate  claims  against  a  single  party,  where  these 
claims,  although  separate,  all  arise  from  a  common  title, 
and  there  is  a  common  right  or  common  interest  in  the 
subject-matter  ;^  **  in  suits  by  numerous  individual  pro- 
prietors of  separate  tracts  of  land  to  restrain  and  abate  a 
private  nuisance  or  continuous  trespass  which  injuriously 
affects  each  proprietor  ;^  *^  in  suits  by  numerous  separate 
judgment  creditors  to  reach  the  property  of  and  enforce 
their  judgments  against  the  same  fraudulent  debtor;^* 
in  suits  by  numerous  owners  of  separate  and  distinct  lots  of 
land  to  set  aside  or  restrain  the  collection  of  an  illegal 
assessment  for  local  improvements  laid  by  a  city,  town,  or 
other  municipal  corporation,  and  made  a  lien  on  their  re- 

1  Technically  called  "  bills  of  pe?ce " ;  e.  g.,  suits  by  tenants  against  the 
lord  of  the  manor ;  by  parishioners  against  the  parson,  etc. :  Cowper  v.  Clerk, 
3  P.  Wms.  155,  157;  Weale  v.  West  Middlesex  Water  Co.,  1  Jacobs  &  W.  358,. 
369,  per  Lord  Eldon;  Phillips  v.  Hudson,  L.  R.  2  Ch.  243,  246;  Powell  v. 
Powis,  1  Younge  &  J.  159;  Rudge  v.  Hopkins,  2  Eq.  Cas.  Abr.  120,  pi.  27  j 
Conyers  v.  Abergavenny,  1  Atk.  284. 

2  Cardigan  v.  Brown,  120  Mass.  493,  495;  Ballou  v.  Inhabitants  of  Hopkin- 
ton,  4  Gray,  324,  328;  Murray  v.  Hay,  1  Barb.  Ch.  59,  43  Am.  Dec.  773;  Reid 
V.  Gilford,  Hopk.  Ch.  416,  419,  420.  But  see,  per  contra,  Marselis  v.  Morri» 
Canal  Co.,  1  N.  J.  £q.  31. 

3  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  139,  151,  156. 

with  approval  in  Washington  County  Geurkink  v.  Petaluma,  112  Cal.  306, 

V.   Williams,    111    Fed.    801,   815,   49  44  Pac.  570;   Younkin  v.  Milwaukee, 

C.   C.   A.    621,   dissenting   opinion   of  etc.,  Co.,  112  Wis.  15,  87  N.  W.  861; 

Sanborn,  Cir.  J.;  Osborne  V.  Wiscon-  First  Nat.   Bank  v.   Sari  Is,   129   Ind. 

sin    Cent.    R.    Co.,    43    Fed.    824,   by  201,  28  Am.  St.  Rep.  185,  28  N.  E. 

Harlan,  J.;   Allen  v.  Intendant,  etc.,  434;  Whipple  v.  Guile,  22  R.  I.  576, 

of  La  Fayette,  89  Ala.  641,  8  South.  84  Am.  St.  Rep.  855,  48  Atl.  935,  and 

30,  9  L.  R.  A.  497;   Dumars  v.  City  eases  cited;   Rowbotham  v.  Jones,  47 

of  Denver  (Colo.  App.),  65  Pac.  580.  N.  J.  Eq.  337,  20  Atl.  731,  and  case* 

(b)  See  ante,  §§  247,  256,  and  cited;  Smith  v.  Smith,  148  Mass.  1, 
not«s-  18  N.  E.  595,  2  Ames  Cas.  Eq.  Jur. 

(c)  See  ante,  f  257,  and  notes,  and       64. 

the  following  among  many  other  cases:  (d)   See  ante,  §  261,  notes  1,  and 

Lonsdale  Co.  v.  Woonsocket,  21  R.  I.  (b).   Class  Third,    (II);    Enright  v. 

498,  44  Atl.  929 ;  Strobel  v.  Kerr  Salt  Grant,    5    Utah,    334,    15    Pac.    268; 

Co.,  164  N.  Y.  303,  79  Am.  St.  Rep.  Sheldon  v.  Packet  Co.,  8  Fed.  769. 
643,  51  L.  R.  A.  687,  58  N.  E.   142; 


§274 


EQUITY   JURISPRUDENCE. 


454 


spective  lots;*^  and  in  suits  by  numerous  tax-payers  of  a 
town,  city,  county,  or  other  district  to  restrain  or  set  aside 
an  illegal  general  tax^  whether  personal  or  made  a  lien  upon 
their  respective  property,  or  an  illegal  proceeding  of  the 
local  officials  whereby  a  public  debt  would  be  created  and 
taxation  would  be  increased.^ ' 

§  274.  Fourth  Class." —  The  jurisdiction  has  been  exer- 
cised in  the  following  cases  belonging  to  this  class,  and  in 
most,  if  not  all,  of  them  it  may  be  regarded  as  fully  settled : 
In  suits  by  a  single  plaintiff  to  establish  a  common  right 

4  Ireland  v.  City  of  Rochester,  51  Barb.  415,  435;  Scofield  v.  City  of  Lans- 
ing, 17  Mich.  437;  City  of  Lafayette  v.  Fowler,  34  Ind.  140;  Kennedy  v.  City 
of  Troy,  14  Hun,  308,  312;  Clark  v.  Village  of  Dunkirk,  12  Hun,  181,  187;  but 
see,  per  contra,  Dodd  v.  Hartford,  25  Conn.  232,  238 ;  Howell  v.  City  of  Buffalo, 
2  Abb.  App.  412,  416;  Bouton  v.  City  of  Brooklyn,  15  Barb.  375,  387,  392-394. 

6  Attorney-General  v.  Heelis,  2  Sim.  &  S.  67,  76;  for  a  collection  of  Ameri- 
can cases,  see  ante,  note  under  §  200.  For  cases  holding  the  contrary,  see 
^nte,  note  under  §  266. 


(e)  See  ante,  §  200,  notes,  and  §  2G6, 
■notes;    Keese  v.   City  of  Denver,    10 

Colo.  113,  15  Pac.  825;  Dumars  v. 
City  of  Denver,  (Colo.  App.),  65  Pac. 
580;  Michael  v.  City  of  St.  Louis,  112 
Mo.  610,  20  S.  W.  666. 

(f)  See  also  Greedup  v.  Franklin 
County,  30  Ark.  101;  Bode  v.  New 
England  Inv.  Co.,  6  Dak.  499,  42 
N.   W.  658,  45  N.  W.   197;   Knopf  v. 

-First  Nat.  Bank,  173  111.  331,  50  N.  E. 
660;  City  of  Chicago  v.  Collins,  175 
III.  445,  51  N.  E.  907,  67  Am.  St.  Rep. 
224,  49  L.  R.  A.  408;  German  Allian.-e 
Assur.  Co.  V.  Van  Cleave,  191  111. 
410,  61  N.  E.  94;  Carlton  v.  Newman, 
77  Me.  408,  1  Atl.  194;  Clee  v.  San- 
ders, 74  Mich.  692,  42  N.  W.  154; 
Ramsey  v.  Bader,  67  Mo.  476;  Sher- 
man V.  Banford,  10  R.  I.  559;  Mc- 
Twiggan  v.  Hunter,  18  R.  I.  776,  30 
Atl.  902,  2  Ames  Cas.  Kq.  Jur.  71; 
<3uimby  v.  Wood,  19  R.  I.  571,  35  Atl. 
149;  McClung  v.  Livesay,  7  VV.  Va. 
329;  Doonan  v.  Board  of  Educ.iiion, 
y  \V.  Va.  246;  Corrothers  v.  Board  of 


Education,  16  W.  Va.  527;  Williams 
V.  County  Court,  26  W.  Va.  488,  53 
Am.  Rep.  94  (an  exhaustive  review  of 
the  authorities)  ;  Blue  Jacket  v. 
Scherr,  50  W.  Va.  533,  40  S.  E.  514. 
Tlie  author's  enumeration  of 
"  groups  "  of  eases  of  class  third  was 
plainly  not  intended  to  be  exhaustive, 
as  seems  to  have  been  supposed  in 
Turner  v.  City  of  Mobile,  135  Ala.  73, 
33  South.  133,  142,  by  McClellan,  C.  J. 
For  numerous  other  illustrations  of 
this  class,  see  §  261,  note;  cases  deny- 
ing the  jurisdiction  in  class  tliird,  -^ee 
§  267,  note;  cases  where  the  exercise 
of  the  jurisdiction  would  be  inef- 
fectual, §  25P/1>,  and  notes. 

(a)  This  section  is  cited  in  Nash- 
ville, C.  &  St.  L.  R.  Co.  V.  M'Con- 
nell,  82  Fed.  65,  75;  in  Smith  v.  Dob- 
bins, 87  Ga.  303,  13  S.  E.  496;  in 
Kellogg  V.  Chenango  Valley  Sav. 
Bank,  42  N.  Y.  Supp.  379,  11  App. 
Div.  458;  Jones  v.  Hardy,  127  Ala. 
221,  28  South.  564. 


455  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §  274 

against  a  numerous  body  of  persons,  where  the  opposing 
claims  of  these  individuals  have  some  community  of  inter- 
est, or  arise  from  some  common  title  ;^ "  in  suits  by  a  single 
plaintiff  to  establish  a  common  right  against  a  numerous 
body,  where  there  is  only  a  community  of  interest  in  the 
questions  at  issue  among  these  opposing  claimants,  but  none 
in  the  subject-matter  or  title  ;-*^  in  suits  by  a  single  plain- 
tiff against  a  numerous  body  of  persons  to  establish  his  own 
right  and  defeat  all  their  opposing  claims,  where  the  claims 
of  these  persons  are  legally  separate,  arose  at  different 
times  and  from  separate  sources,  and  are  common  only 
with  respect  to  their  interest  in  the  question  involved  and  in 
the  kind  of  relief  to  be  obtained  by  or  against  each;^^  in 

1  Technical  "  bills  of  peace  " :  Lord  Tenham  v.  Herbert,  2  Atk.  483 ;  How 
V.  Tenants  of  Bromsgrove,  1  Vern.  22 ;  Ewelme  Hospital  v.  Andover,  1  Vern. 
266  (profits  of  a  fair)  ;  Corp'n  of  Carlisle  v.  Wilson,  13  Ves.  276,  279  (tolls)  ; 
New  River  Co.  v.  Graves,  2  Vern.  431 ;  Brown  v.  Vermuden,  1  Chan.  Cas.  272 
(tithes)  ;  Rudge  v.  Hopkins,  2  Eq.  Cas.  Abr.  170,  pi.  27  (tithes)  ;  Pawlet  v. 
Ingres,  1  Vern.  308  (lord  and  tenants)  ;  Weeks  v.  Staker,  2  Vern.  301  (ditto)  ; 
Arthington  v.  Fawkes,  2  Vern.  356  (ditto)  ;  Conyers  v.  Abergavenny,  1  Atk. 
284  (ditto)  ;  Poor  v.  Clarke,  2  Atk.  515  (ditto)  ;  Duke  of  Norfolk  v.  Myers, 
4  Madd.  83  (lord  of  manor, —  tolls  of  a  mill)  ;  Bouverie  v.  Prentice,  1  Brown 
Ch.  200. 

2  Mayor  of  York  v.  Pilkington,  1  Atk.  282;  City  of  London  v.  Perkins,  3 
Brown  Pari.  C,  Tomlins's  ed.,  602,  4  Brown  Pari.  C,  Tomlins's  ed.,  157;  per 
contra,  Dilley  v.  Doig,  2  Ves.  486  (no  jurisdiction  in  suit  by  owner  of  a 
patent  right  or  copyright  against  separate  infringers). 

3  New  York  &  N.  H.  R.  R.  v.  Schuyler,  17  N.  Y.  592,  599,  600,  605-608, 
34  N.  Y.  30,  44-46;  Sheffield  Water  Works  v.  Y^'eomans,  L.  R.  2  Ch.  8,  11; 
Ware  v.  Horwood,  14  Ves.  28,  32,  33;  Board,  etc.  v.  Deyoe,  77  N.  Y.  219, 

(b)  See  ante,  §§  247,  256,  and  notes;  Nielsen,  83  Minn.  246,  86  N.  W.  83; 

Dodge  V.  Briggs,  27  Fed.  160.  Bishop   v.   Rosenbaum,   58   Miss.   84; 

(e)   See  ante,  §§  256,  261,  and  cases  Pollock  v.  Okolona  Sav.  Inst.,  61  Miss. 

cited;  Central  Pac.  R.  R.  Co.  v.  Dyer,  293;    Lowenstein   v.    Abramsohn,    76 

1    Saw.    641,    Fed.    Cas.    No.    2,552;  Miss.  890,   25   South.  498;    Wadding- 

Hyman  v.  Wheeler,  33  Fed.  630;   De  ham  v.  Robledo,  6  N.  M.  347,  28  Pac. 

Forest   v.    Thompson,    40    Fed.    375;  663;   Vann  v.  Hargett,  22  N.  C.    (2 

Preteca  v.  Maxwell  Land  Grant  Co.,  Dev.  &  B.  Eq.)    31,  32  Am.  Dec.  0S9 

(C.  C.  A),  50  Fed.  674;  Lasher  v.  Mc-  (an    important    case)  ;    Stockwell    v. 

Creery,  66   Fed.   834,  843;    Beatty  v.  Fitzgerald,  70  Vt.  468,  44  Atl.  504; 

Dixon,   56   Cal.   622;    Guess  v.   Stone  Ellis  v.  Northern  Pac.  R.  R.  Co.,  77 

Mountain   I.   &  R.   Co.,   67   Ga.  215;  Wis.  114,  45  N.  W.  811. 

South    Carolina    R.    Co.    v.    Steiner,  (d)  Quoted   with   approval,   North- 

44   Ga.   546 ;    City   of   Albert   Lea  T.  em  Pac.  R.  R.  Co.  v.  Walker,  47  P'ed- 


§274 


EQUITY   JURISPRUDENCE. 


456 


suits  by  a  single  plaintiff  against  numerous  defendants, 
parties  to  a  complicated  contract,  where  his  rights  against 
each  are  similar  and  legal,  but  would  require,  for  their 
determination,  a  number  of  simultaneous  or  successive  ac- 
tions at  law  ;*  in  suits  by  a  single  party  against  a  number  of 
persons  to  restrain  the  prosecution  of  simultaneous  actions 
at  law  brought  against  him  by  each  defendant,  and  to  pro- 
cure a  decision  of  the  whole  in  one  proceeding,  where  all 
these  actions  depend  upon  the  same  questions  of  law  and 
f  act.'^ ' 

4  Black  V.  Shreeve,  7  N.  J.  Eq.  440,  456,  457. 

BMcHenry  v.  Hazard,  45   N.  Y.  580,  587,  588;   Board,  etc.  v.  Deyoe,   77 
N.  Y.  219.     See,  per  contra,  County  of  Lapeer  v.  Hart,  Harr.   (Mich.)   157. 


681,  by  Caldwell,  J.;  Hale  v.  AUin- 
son,  102  Fed.  790,  792.  See  also  Mc- 
Lean V.  Lafayette  Bank,  3  McL.  415, 
419,  Fed.  Cas.  No.  8,886;  Woodruff  v. 
North  Bloomfield  G.  M.  Co.,  8  Saw. 
028,  16  Fed.  25;  Chase  v.  Cannon,  47 
Fed.  674;  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Ohio  Val.  1.  &  C.  Co.,  57  Fed. 
42,  45;  Nashville,  C.  &  St.  L.  R. 
Co.  V.  McConnell,  82  Fed.  65,  75; 
Eailey  v.  Tillinghast,  (C.  C.  A.),  99 
Fed.  801,  806,  807  (a  striking  case)  ; 
Smith  V.  Dobbins.  87  Ga.  303,  13 
S.  E.  496;  Lockwood  Co.  v.  Lavir- 
rence,  77  Me.  297 ;  Farmington  Vil- 
lage Corp.  V.  Sandy  River  Nat.  Bank, 
85  Me.  48,  26  Atl.  965;  Town  of 
Springport  v.  Teutonia  Say.  Bank,  75 
N.  Y.  397;  Kellogg  v.  Chenango  Val- 
ley Savings  Bank,  42  N.  Y.  Supp.  379, 
11  App.  Div.  458;  and  many  other 
cases,  chiefly  recent,  cited  ante,  note 
to  S  261.  For  cases  denying  the  juris- 
diction, see  ante,  §  264,  notes.  For 
cases  where  the  exercise  of  the  juris- 
diction would  be  ineffectual,  or  un- 
necessary, see  ante,  §§  25V/>,  251%, 
and  notes.  An  important  group  of 
cascB  of  this  class  comprises  those 
where  some  act  of  a  single  defendant, 
such   as  an  official   board,  in  levying 


taxes,  fixing  rates,  etc.,  is  enjoined  for 
the  purpose  of  avoiding  a  multiplicity 
of  suits,  not  with  the  single  defendant, 
but  with  other  persons.  See  ante,^ 
§  261,  note  (b),  "Fourth  Class,"  (I), 
(a),  (b)  ;  Smyth  v.  Ames,  169  U.  S. 
466,  18  Sup.  Ct.  418;  Haverhill  Gas- 
light Co.  V.  Barker,  109  Fed.  694  j 
Cummingg  v.  Merchants'  Nat.  Bank,. 
101  U.  S.  153;  Hills  v.  National  Al- 
bany Exch.  Bank,  105  U.  S.  319,  & 
Fed.  248;  Albany  City  Nat.  Bank  v. 
Maher,  19  Blatch.  1S4,  6  Fed.  417; 
Whitney  Nat.  Bank  v.  Parker,  41  Fed. 
402;  Third  Nat.  Bank  v.  Mylin,  76 
Fed.  385;  Western  Union  Tel.  Co.  v. 
Poe,  61  Fed.  449,  453;  Sanford  v.  Poe, 
69  Fed.  546,  548,  16  C.  C.  A.  305,  60 
L.  R.  A.  641 ;  Western  Union  Tel.  Co. 
V.  Norman,  77  Fed.  13,  21;  Taylor  v. 
Louisville  &  N.  R.  Co.,  (C.  C.  A.), 
88  Fed.  350;  Pyle  v.  Brenneman.  122 
Fed.  787 ;  Chesapeake  &  0.  R.  Co.  v. 
Miller,  19  W.  Va.  408. 

(e)  See  ante,  §  261,  note  (b)^ 
"Class  Fourth,"  (I),  (a);  Guess  v. 
Stone  Mountain  I.  &  R.  Co.,  67 
Ga.  215;  South  Carolina  R.  Co.  v. 
Steincr,  44  Ga.  546;  City  of  Albert 
Lea  v.  Nielsen,  83  Minn.  246,  86  N.  W. 
83;  Kellogg  V.  Chenango  Valley  Sav.. 


457  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  275 

§  275.  Statutory  Jurisdiction. —  In  addition  to  the  fore- 
going discussion  of  the  doctrine  as  forming  a  part  of  the 
general  equitable  jurisdiction,  there  remains  to  be  very 
briefly  considered  a  statutory  basis  of  the  jurisdiction  which 
is  found  in  some  of  the  American  states.  In  the  legislation 
of  the  various  states  which  have  adopted  the  reformed 
system  of  procedure,  there  is  considerable  diversity  with 
respect  to  matters  of  detail ;  the  attempt  to  put  the  rules  con- 
cerning remedies  and  remedial  rights,  whether  legal  or 
equitable,  into  a  statutory  form  is  carried  much  further 
in  some  of  the  states  than  in  others.  This  partial  codifica- 
tion in  several  of  the  states  has  resulted  in  statutory  pro- 
visions concerning  certain  equitable  remedies  which  deal 
with,  and  to  some  extent  regulate,  the  jurisdiction  based 
upon  the  prevention  of  a  multiplicity  of  suits.  These  pro- 
visions are  partly  declaratory  of  well-settled  doctrines,  and 
partly  operate,  perhaps,  to  extend  the  jurisdiction  beyond 
its  original  limits ;  they  do  not,  however,  purport  to  define, 
regulate,  and  fix  the  jurisdiction  as  a  whole.''  The  legisla- 
tion of  California  may  be  taken  as  the  type.  The  following 
provisions  on  the  subject  are  found  in  its  codes:  ''  Except 
where  otherwise  provided  by  this  title,  a  final  injunction 
may  be  granted  to  prevent  the  breach  of  an  obligation  exist- 
ing in  favor  of  the  applicant.  ...  3.  Where  the  restraint 
is  necessary  to  prevent  a  multiplicity  of  judicial  proceed- 
ings." ^  *' An  injunction  cannot  be  granted, —  1.  To  stay  a 
judicial  proceeding  pending  at  the  commencement  of  the 
action  in  which  the  injunction  is  demanded,  unless  such 
restraint  is  necessary  to  prevent  a  multiplicity  of  such 
proceedings. ' '  ^     The  first  of  these  provisions  is  plainly 

1  Cal.  Civ.  Code,  §  3422. 

2Cal.  Civ.  Code,  §  3423.    Also  Dakota  Civ.  Code,  §§  2014,  2016,  2017. 

Bank,  42  N.  Y.   Supp.   379,   11   App.       firmed,  131  N.  Y.  503,  30  N.  E.  566,  1 
Div.  458;  National  Park  Bank  v.  God-       Keener's  Gas.  Eq.  Jur. 
dard,    02    Hun,    31,    16    N.   Y.    Supp.  (a)  For  a  statutory  jurisdiction  in 

343,  2  Ames   Cas.   Eq.   Jur.   82;    af-       Massachusetts,  see  Carr  v.  Silloway, 

105  Mass.  543. 


.^.  276  EQUITY   JURISPEUDENCE.  458 

declaratory  of  tlie  familiar  doctrine  of  the  general  equi- 
table jurisdiction.  By  the  second  provision  the  intent  is 
elear  to  abolish  the  use  of  the  injunction  to  restrain  ac- 
tions at  law,  in  all  ordinary  cases  where  it  had  heretofore 
been  so  used ;  but  to  permit  its  use  for  that  purpose  when- 
ever it  might  be  necessary  in  order  to  prevent  a  multiplicity 
of  suits.  I  have  placed  in  the  foot-note  the  decisions  which 
have  given  a  judicial  interpretation  to  this  clause." 


SECTION  V. 


THE  DOCTRINE  THAT  THE  JURISDICTION  ONCE  EXISTING  IS  NOT 
LOST  BECAUSE  THE  COURTS  OF  LAW  HAVE  SUBSEQUENTLY 
ACQUIRED  A  LIKE  AUTHORITY. 

ANALTSIS. 

§  276.  The  doctrine  is  applied  to  both  kinds  of  jurisdiction. 
^§  277,  278.  Where  the  jurisdiction  at  law  has  been  enlarged  entirely  by  the 
action  of  the  law  courts. 

§  278.  Ditto,  examples. 
|§  279-281.  Where  the  jurisdiction  at  law  has  been  enlarged  by  statute. 

§  280.  Ditto,  examples, 

§  281.  Where  such  statute  destroys  the  previous  equity  jurisdiction. 

§  276.  Is  Applied  to  Both  Kinds  of  Jurisdiction. —  There 
is  still  another  principle  affecting  the  equitable  jurisdic- 
tion, which  remains  to  be  considered  in  all  its  relations, 
namely:  Whenever  a  court  of  equity,  as  a  part  of  its 
inherent  powers,  had  jurisdiction  to  interfere  and  grant 
relief  in  any  particular  case,  or  under  any  condition  of 
facts  and  circumstances,  such  jurisdiction  is  not,  in  general, 
lost,  or  abridged,  or  affected  because  the  courts  of  law  may 
have  subsequently  acquired  a  jurisdiction  to  grant  either  the 

aUhlfc'lder  v.  Levy,  9  Cal.  607,  614,  615;  Crowley  v.  Davis,  39  Cal.  2G8, 
2G9;  Pixicy  v.  Huf,'<,Mn3,  15  Cal.  134;  Hockstacker  v.  Levy,  11  Cal.  76;  Gorhaui 
V.  Tooiney,  9  Cal.  77;  Anthony  v.  Dunlap,  8  Cal.  26;  Rickett  v.  Johnson,  8 
Ciil.  34,  36;  Rcvalk  v.  Kraemer,  8  Cal.  06,  71,  68  Am.  Dec.  304;  Chipman  v. 
Ilil.l.jird,  8  Cal.  268,  270;  Agard  T.  Valencia,  39  Cal.  292,  303;  Flaherty  v. 
Ivflly,  51  Cal.  145. 


459  JTTEISDICTION    ONCE    EXISTING    NOT    LOST.  §  277 

«ame  or  different  relief,  in  the  same  kind  of  cases,  and  under 
the  same  facts  or  circmnstances."  This  principle  has  al- 
ready been  briefly  mentioned  as  one  source  of  the  concurrent 
jurisdiction;^  but,  like  the  doctrines  discussed  in  the  pre- 
<jeding  sections  of  this  chapter,  it  also  extends  to  and 
operates  in  the  exclusive  jurisdiction.  In  other  words,  the 
exclusive  jurisdiction  to  grant  purely  equitable  reliefs,  as 
well  as  the  concurrent  jurisdiction  to  confer  legal  reliefs, 
is  still  preserved,  although  the  common-law  courts  may  have 
obtained  authority  to  award  their  remedies  to  the  same 
parties  upon  the  same  facts. 

§  277.  Jurisdiction  at  Law  Enlarged  by  the  Law  Courts. — 
This  subsequent  jurisdiction  of  the  courts  of  law  may  be 
acquired  in  either  of  two  modes :  by  the  virtual  legislative 
action  of  the  common-law  judges  themselves,  or  by  express 
statutory  legislation.  In  many  instances  it  has  happened 
that  the  law  courts,  by  abandoning  their  old  arbitrary  rules, 
and  by  adopting  notions  which  originated  in  the  court  of 
chancery,  and  by  enlarging  the  scope  and  effect  of  the  com- 
mon-law actions,  have  in  process  of  time  obtained  the  power 
of  giving  even  adequate  relief  in  cases  and  under  circum- 
stances which  formerly  came  within  the  exclusive  domain  of 
equity.  In  all  such  instances,  the  courts  of  equity  have  con- 
tinued to  assert  and  to  exercise  their  own  jurisdiction,  for 
the  reason  that  it  could  not  be  destroyed,  or  abridged,  or 
even  limited  by  any  action  of  the  common-law  courts  alone. 
The  enlargement  of  the  jurisdiction  at  law,  by  the  ordinary 
process  of  legal  development,  has  not,  in  general,  affected 
the  pre-existing  jurisdiction  of  equity.^  * 

§  276,  1  See  ante,  §  182. 

§  277,  1  Eyre  v.  Everitt,  2  Russ.  381,  382,  per  Lord  Eldon:  "  This  court  will 
iiot  allow  itself  to  be  ousted  of  any  part  of  its  original  jurisdiction  because  a 
court  of  law  happens  to  fall  in  love  with  tlie  same  or  a  similar  jurisdiction." 

§  276,  (a)  Quoted  in  Van  Frank  v.  Michael,  84  Ala.  585,  4  South.  421; 

St.   Louis,   C.   G.    &   Ft.    S.   R'y  Co.  Condon  v.  Knoxville,  C.  G.  &  L.  R.  R. 

(Mo.),   67   S.   W.   688,   691;   cited  to  Co.    (Tenn.  Ch.  App.),  35  S.  W.  781. 

this  effect  in  Howell  v.  Moores,   127  §  277,    (a)  Cited  with  approval  in 

111.    67,    19    N.    E.    863;    Rooney    v.  Converse  v.   Sickles,  44  N.  Y.  Supp. 


§  278  EQUITY    JURISPRUDENCE.  460 

§  278.  The  following  are  some  of  the  most  important 
classes  of  cases  in  which  this  principle  has  been  applied 
and  the  equitable  jurisdiction  has  been  exercised,  although 
a  court  of  law  may  maintain  an  action  or  allow  a  defense 
upon  the  same  facts,  and  may  give  an  adequate  and  perhaps 
the  very  same  relief :  In  suits  to  recover  a  fund  impressed 
with  a  trust,  or  where  a  trust  relation  in  view  of  equity 
exists  between  the  parties,  where  the  plaintiff  might  re- 
cover the  same  sum  by  an  action  of  assumpsit  for  money 
had  and  received,  or  like  legal  action  ;^ "  in  suits  involving 
fraud,  mistake,  or  accident,  the  equitable  jurisdiction  being 
exercised  to  give  appropriate  relief  to  the  injured  party, 
although  a  court  of  law  has  assumed  power  to  grant  relief 
either  affirmatively  by  action,  or  negatively  by  allowing  a 
defense  f  in  suits  growing  out  of  the  relation  of  suretyship^ 
brought  by  a  surety  against  his  principal  for  an  exonera- 
tion, or  against  co-sureties  for  a  contribution,  or  against 

See  also  Collins  v.  Blantern,  2  Wils.  341,  350,  per  Wilmot,  C.  J.;  Atkinson  v. 
Leonard,  3  Brown  Ch.  218,  224;  Harrington  v.  Du  Chatel,  1  Brown  Ch.  124; 
Bromley  v.  Holland,  7  Ves.  3,  19-21;  Kemp  v.  Pryor,  7  Ves.  237,  249,  250;. 
Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  500,  567,  568;  Rathbone  v.  Warren,  10  Johns. 
587,  595;  People  v.  Houghtaling,  7  Cal.  348,  351;  Wells  v.  Pierce,  27  N.  H. 
503,  511-514;  Iriek  v.  Black,  17  N.  J.  Eq.  189,  198;  Sailly  v.  Elmore.  2 
Paige,  497,  499;  Lane  v.  Marshall,  1  Heisk.  30,  34;  State  v.  Adler,  1  Heisk. 
543,  547,  548. 

1  Kemp  V.  Pryor,  7  Ves.  237,  249,  250;  New  York  Ins.  Co.  v.  Roulet,  24 
Wend.  505;  Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  560,  567,  568;  Kirkpatrick  v. 
McDonald,  11  Pa.  St.  387,  392,  393. 

2  People  V.  Houghtaling,  7  Cal.  348,  351;  Wells  v.  Pierce,  27  N.  H.  503, 
511-514;  Babcock  v.  McCamant,  53  111.  214,  217;  Boyce's  Ex'rs  v.  Grundy,. 
3  Pet.  210,  215;  Humphries  v.  Bartee,  10  Smedes  &  M.  282,  295,  296. 

1080,  16  App.  Div.  49   (affirmed,  161  established,    the    equity    jurisdiction. 

N.  Y.  060,  57  N.  E.  1107).  has  been  in  some  cases  declined." 

The  rule  is  stated  in  Sweeny  t.  (a)  Thus,  in  Converse  v.  Sickles,  44 
Williams,  36  N.  J.  Eq.  627,  as  fol-  N.  Y.  Supp.  1080,  16  App.  Div.  49' 
lows:  "When  courts  of  law  have  of  (affirmed,  161  N.  Y.  606,  57  N.  E. 
their  own  notion  extended  their  juris-  1107),  goods  were  obtained  by  fraud,, 
diction  over  cases  thtTctofore  solely  .and  the  creditor  was  allowed  to  main- 
cognizable  in  equity,  the  jurisdiction  tain  a  bill  to  impress  a  trust  upon 
of  the  latter  courts  has  been  in  no  re-  the  proceeds  derived  from  the  sale. 
spect  abridged,  although  when  the  This  section  of  the  text  was  cite^  a« 
jurisdiction   at  law   has   become   well  autliority. 


461  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  279 

the  creditor  or  the  principal  to  be  relieved  from  liability  on 
account  of  the  creditor's  conduct,  or  for  any  other  appro- 
priate relief,  although  courts  of  law  may  give  adequate 
relief  to  the  surety  by  action  upon  implied  contract,  or 
by  defense  to  an  action  brought  against  him  by  the  cred- 
itor;^ in  suits  by  the  assignee  of  a  thing  in  action,  brought 
in  his  own  name  as  equitable  owner,  to  collect  the  amount 
due  ;*  ^  and  in  suits  to  set  aside  or  to  be  relieved  from,  or  to 
restrain  an  action  or  judgment  at  law  upon,  a  contract 
which  is  illegal,  although  the  illegality  may,  either  by  au- 
thority of  the  law  courts  themselves  or  by  express  statute, 
be  set  up  as  a  defense  to  an  action  at  law  brought  to  enforce 
the  contract,  and  may  thus  defeat  a  recovery  thereon;  as, 
for  example,  where  the  contract  is  usurious,  or  given  for  a 
gambling  debt,  or  other  illegal  consideration,  or  is  con- 
trary to  good  morals.^ 

§  279.  Jurisdiction  at  Law  Enlarged  by  Statute. —  Where, 
on  the  other  hand,  the  new  power  is  conferred  upon  the  law 

3  Eyre  v.  Everitt,  2  Russ.  381,  382;  Sailly  v.  Elmore,  2  Paige,  497,  499; 
Minturn  v.  Farmers'  Loan  &  T.  Co.,  3  N.  Y.  498,  500,  501;  Rathbone  v. 
Warren,  10  Johns.  587,  595,  596;  King  v.  Baldwin,  17  Johns.  384,  388,  8 
Am.  Dec.  415;  Irick  v.  Black,  17  N.  J.  Eq.  189,  198,  199;  Wesley  Church  v. 
Moore,  10  Pa.  St.  273,  278-282;  Montagne  v.  Mitchell,  28  111.  481,  486;  Smith 
V.  Hays,  1  Jones  Eq.  321,  323;  Viele  v.  Hoag,  24  Vt.  46,  51;  Hempstead  v. 
Watkins,  6  Ark.  317,  355,  368,  42  Am.  Dec.  696;  Heath  v.  Derry  Bank,  44 
N.  H.  174. 

4  Dobyns  v.  McGovern,  15  Mo.  662,  668 ;  but  the  jurisdiction  in  such  cases 
is  practically  very  much  limited.  See  Ontario  Bk.  v.  Mumford,  2  Barb.  Ch. 
596,  615;  post,  §  281. 

5  Collins  V.  Blantern,  2  Wils.  341,  350,  per  Wilmot,  C.  J.;  Bromley  v, 
Holland,  7  Ves.  3,  18-20;  Harrington  v.  Du  Chatel,  1  Bro%vn  Ch.  124;  Fan 
ning  V.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dee.  283;  Gough  v.  Pratt,  9  Md, 
526;  Thomas  v.  Watts,  9  Md.  536,  note;  Lucas  v.  Waul,  12  Smedes  &  M.  157 
West  V.  Beanes,  3  Har.  &  J.  568;  White  v.  Washington,  5  Gratt.  645,  649 
but,  as  examples  of  circumstances  in  which  the  jurisdiction  will  not  be  exer 
cised,  see  Thompson  v.  Berry,  3  Johns.  Ch,  394,  398;  Sample  v.  Barnes,  14 
How.  70,  73,  75. 

(b)  See  Taylor  v.  Reese,  44  Miss.  holder,  and  in  the  conduct  of  the  suit 
89.  In  this  case  it  was  held  that  the  regard  the  usee  as  the  real  plaintiff, 
equity  courts  were  not  ousted  of  juris-  "  Because  the  law  tribunals  have  de- 
diction  because  the  law  courts  permit  rived  an  indirect  remedy  it  should 
a  Bxxit  in  the  name  of  the  payee,  for  not  oust  the  original  jurisdiction  of 
the    use    of    the    beneficial    equitable  the  chancery." 


§  279  EQUITY   JURISPRUDENCE.  462 

courts  by  statutory  legislation,  the  rule  is  well  settled  that 
unless  the  statute  contains  negative  words  or  other  lan- 
guage expressly  taking  away  the  pre-existing  equitable 
jurisdiction,  or  unless  the  whole  scope  of  the  statute,  by  its 
reasonable  construction  and  its  operation,  shows  a  clear 
legislative  intent  to  abolish  that  jurisdiction,  the  former 
jurisdiction  of  equity  to  grant  its  relief  under  the  circum- 
stances continues  unabridged.*  It  follows,  therefore,  that 
where  the  statute  merely  by  affirmative  words  empowers  a 
court  of  law  to  interfere  in  the  case,  and  to  grant  a  remedy, 
even  though  such  remedy  may  be  adequate,  and  even  though 
it  may  be  special  and  equitable  in  its  nature,  the  previous 
jurisdiction  of  equity  generally  remains.^  ^ 

1  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224;  Toulmin  v.  Price,  5  Vea. 
235,  238,  239;  Ex  parte  Greenway,  6  Yes.  812,  813;  East  India  Co.  v.  Bod- 
dam,  9  Ves.  464,  466-409;  Howe  v.  Taylor,  6  Oreg.  284,  291,  292;  Force  v.  City 
of  Elizabeth,  27  N.  J.  Eq.  408;  Case  v.  Fishback,  10  B.  Mon.  40,  41;  Holdron 
V.  Simmons,  28  Ala.  029;  Bright  v.  Newland,  4  Sneed,  440,  442;  Payne  v. 
Bullard,  23  Miss.  88,  90,  55  Am.  Dec.  74;  Crain  v.  Barnes,  1  Md.  Ch.  151,  154; 
Mitchell  V.  Otey,  23  Miss.  236,  240;  Wells  v.  Pierce,  27  N.  H.  503,  511-514. 

(a)  Quoted  in  Crass  v.  Memphis  &  diction  are  to  be  strictly  construed, 
C.  R.  Co.,  96  Ala.  447,  11  South.  and  if  the  restrictive  purpose  is  not 
480.  clear,  it  will  not  be  extended  by  con- 

(b)  Cited  with  approval  in  Howell  struction."  In  Thrasher  v.  Doig,  IS- 
V.  Moores,  127  111.  07,  19  N.  E.  803;  Fla.  809,  the  rule  is  stated  as  follows: 
Rooney  v.  Michael,  84  Ala.  585,  4  "  We  cannot  assent  to  the  proposition 
South.  421;  Black  v.  Boyd,  50  Ohio  that  a  remedy  in  equity  once  existing 
St.  46,  33  N.  E.  207 ;  Moulton  v.  is  taken  away  by  the  fact  that  a  spe- 
Smith,  10  R.  I.  120,  27  Am.  St.  Rep.  cific  remedy  at  law  has  been  created, 
728,  12  Atl.  891;  Washburn  v.  Van  unless  the  latter  is  expressly  declared 
Steen%\7k,  32  Minn.  330,  349.  For  by  the  law  to  be  the  only  remedy." 
other  statements  of  the  rule  see  Darst  But  see  Osborn  v.  Ordinary,  17  Ga. 
V.  Phillips,  41  Ohio  St.  514;  Sweeney  123,  63  Am.  Dec.  230,  where  the  court 
V.  Williams,  30  N.  J.  Eq.  027;  Lud-  said:  "In  reference  to  partitions, 
low  V.  Simond,  2  Caines  Cas.  1,  2  Am.  the  establishment  of  lost  papers,  the 
Dec.  291;  Filler  v.  Tyler,  91  Va.  458,  foreclosure  of  mortgages,  the  settle- 
22  S.  E.  235;  Brandon  v.  Carter,  119  ment  of  accounts,  etc.  .  .  .  not- 
Mo.  572,  581,  41  Am.  St.  Rop.  073,  withstanding,  by  the  English  law  as 
675,  24  S.  W.  1035.  In  Bbick  v.  adopted  here,  chancery  may  have  had 
Boyd,  50  Ohio  St.  46,  33  N.  E.  207,  concurrent,  or  even'  exclusive  juris- 
the  court  said:  "  Rtafutos,  however,  diction  over  these  or  any  other  sub- 
that  abrogate  or  abridge  that  juris-  ject,  still  if  full  redress  has  been  pro- 


463 


JURISDICTION    ONCE    EXISTING    NOT   LOST. 


§280 


§  280.  The  following  are  some  of  the  instances  in  which 
this  rule  has  been  applied,  and  the  equitable  jurisdiction 
has  been  asserted,  notwithstanding  the  statutory  power 
given  to  the  courts  of  law  under  the  same  condition  of 
facts  r*  In  suits  upon  lost  instruments,  bonds,  notes,  bills, 
and  other  contracts  to  recover  the  amount  due ;' ''  in  suits  for 

1  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224;  Touhnin  v.  Price,  5  Ves.  235, 
238  (and  see  note  2,  at  end  of  the  case,  p.  240,  Perkins's  ed.)  ;  Ex  parte  Green- 
way,  6  Ves.  812,  813  (see  notes  at  end  of  the  case,  p.  813,  Perkins's  ed.)  ;  East 
India  Co,  v,  Boddam,  9  Ves.  464,  466-469;   Howe  v.  Taylor,  6  Or.  284,  291, 


vided  by  statute,  equity  in  that  case 
is  ousted  of  its  jurisdiction,  unless  a 
special  case  is  made  by  the  bill." 

The  rule  of  the  text  does  not  apply 
to  those  cases,  necessarily  rare,  where 
courts  of  equity  have  invented  a  rem- 
edy subsequently  to  the  creation  of  a 
remedy  by  statute  in  a  particular 
state;  the  statutory  remedy  is  exclu- 
sive in  that  state;  Van  Frank  v.  St. 
Louis,  C.  G.  &  Ft.  S.  R'y  Co.,  (Mo.), 
67  S.  W.  688,  691.  In  that  case  the 
statutory  remedy  granting  a  lien  to 
certain  persons  upon  the  property  of 
an  insolvent  railroad  company,  being 
prior  in  respect  to  the  time  of  its 
creation  to  the  equitable  remedy  in- 
vented by  the  federal  courts,  giving 
priority  over  mortgage  indebtedness 
to  certain  classes  of  floating  debts  of 
such  companies,  was  held  to  be  ex- 
clusive of  the  latter  remedy. 

(a)  Miscellaneous  Illustrations  of 
the  Principle. —  In  Crass  v.  Memphis 
&  C.  R.  R.  Co.,  96  Ala.  447,  11  South. 
480,  it  is  held  that  a  common  carrier 
may  maintain  a  bill  to  enforce  a  lien 
although  a  statute  authorizes  the  sale 
of  freight  to  pay  charges.  In  Black 
v.  Boyd,  50  Ohio  St.  46,  33  N.  E.  207,  « 
it  was  held  that  a  statute  providing 
for  jury  trial  in  actions  for  the  re- 
covery of  money  only  does  not  abro- 
gate the  equitable  jurisdiction  in  mat- 
ters of  account.     In  Kelly  v.  Lehigh 


Min.  &  Mfg.  Co.,  98  Va.  405,  81  Am. 
St.  Rep.  736,  36  S.  E.  511,  it  was  held 
that  a  code  provision  which  makes 
more  effective  the  common-law  remedy 
of  detinue  does  not  affect  the  juris- 
diction of  equity  to  decree  the  specific 
delivery  of  title  papers  to  heirs-at- 
law,  devisees,  and  other  persons  prop- 
erly entitled  to  the  custody  and  pos- 
session of  the  title  deeds  of  their  re- 
spective estates,  where  they  are 
wrongfully  detained  or  withheld  from 
them.  In  Filler  v.  Tyler,  91  Va.  458, 
22  S.  E.  235,  it  was  held  that  a  mar- 
ried woman  may  obtain  an  injunction 
for  the  protection  of  her  equitable 
separate  estate  although  a  statute 
may  furnish  a  complete  and  adequate 
remedy  at  law.  A  statute  enlarging 
the  jurisdiction  of  courts  of  law  in 
matters  relating  to  husband  and  wife 
does  not  deprive  equity  of  jurisdic- 
tion of  a  contract  between  husband 
and  wife  relating  to  separate  prop- 
erty. Schroeder  v,  Loeber,  75  Md. 
195,  23  Atl.  579,  24  Atl.  226.  State 
statutes  providing  for  set-offs  at  law 
do  not  deprive  courts  of  the  United 
States  of  jurisdiction  in  equity. 
Sowles  V.  First  Nat.  Bank,  100  Fed. 
552. 

(b)  See  also,  supporting  and  citing 
the  text,  Bohart  v.  Chamberlain,  99 
Mo.  622,  13  S.  W.  85. 


§  280  EQUITY   JURISPRUDENCE.  464 

the  establisliment  or  admeasurement  of  dower,  although  a 
statutory  authority  over  matters  of  dower  has  been  given 
to  other  courts  f  *^  in  suits  to  be  relieved  from  a  contract  lia- 
bility on  account  of  a  failure  of  consideration,  although  a 
statute  has  permitted  the  fact  to  be  set  up  as  a  defense  in 
an  action  at  law  brought  on  the  contract;^  in  suits  to  en- 
force a  partnership  liability  or  the  payment  of  a  firm  debt  by 
the  estate  of  a  deceased  partner,  although  a  statute  has  al- 
lowed a  recovery  by  action  at  law  under  the  same  circum- 
stances, and  this  legal  remedy  is  adequate  ;^  where  a  statute 
had  authorized  similar  relief  in  the  action  by  a  court  of  law, 
it  did  not  interfere  with  the  equitable  jurisdiction  by  suit 
to  enforce  an  inchoate  lien  on  a  judgment  debtor's  land, 

292;  Allen  v.  Smith,  29  Ark.  74;  Hickman  v.  Painter,  11  W.  Va.  386;  Force 
T.  City  of  Elizabeth,  27  N.  J.  Eq.  408 ;  Fatten  v.  Campbell,  70  111.  72 ;  Harde- 
man V.  Battersby,  53  Ga.  36,  38  (case  of  a  warehouseman's  receipt  for  cotton 
lost  or  destroyed;  a  court  of  equity  has  jurisdiction  of  a  suit  to  recover  the 
cotton  described  in  the  contract)  ;  but  see  Mossop  v.  Eadon,  16  Ves.  430,  433, 
434,  in  which  the  chancellor  refused  to  entertain  a  suit  on  a  lost  note  not 
negotiable,  since  the  holder  could  recover  at  law.  The  reason  given  for  this 
decision  was,  that  in  all  such  cases  (where  no  profert  was  ever  required  at 
law),  the  only  ground  of  the  equitable  jurisdiction  was  the  power  of  the  court 
to  order  indemnity,  where  indemnity  was  necessary,  as  in  suits  on  lost  nego- 
tiable  instruments;  but  no  indemnity  being  needed  in  cases  of  non-negotiable 
notes,  equity  could  not  interfere.  This  reasoning  does  not  apply  to  those  lost 
instruments  of  which  profert  was  originally  requisite  in  actions  at  law. 

2  Jones  V.  Jones,  28  Ark.  19,  20 ;  Menifee  v.  Menifee,  8  Ark.  9. 

3  Case  V.  Fishback,  10  B.  Mon.  40,  41 ;  and  see  Bromley  v.  Holland,  7  Ves. 
3,  18-20. 

4Holdron  v.  Simmons,  28  Ala.  629;  Ala.  Code,  §  2142. 

(c)  See  also  Efland  v.  Efland,  96  terms,  be  made  to  apply,  or  where,  if 
N.  C.  493,  1  S.  E.  858.  In  Bishop  v.  it  be  applicable  so  far  as  the  assign- 
Woodward,  103  Ga.  281,  29  S.  E.  908,  ment  of  dower  is  concerned,  but  the 
the  court  said :  "  Under  the  practice  aid  of  a  court  of  equity  is  necessary 
prevailing  in  this  state,  the  remedy  to  the  assertion  of  the  widow's  right 
provided  in  the  Code  must  be  fol-  to  dower,  or  to  secure  to  her  the  en- 
lowed  as  the  exclusive  remedy  when  joyment  of  the  dower  estate,  a  court 
it  is  applicable  to  the  facts  of  the  of  equity  will,  notwithstanding  the 
case,  and  the  aid  of  a  court  of  equity  provision  of  the  Code,  entertain  a 
ifl  not  necessary  to  the  assertion  of  petition  praying  for  the  assignment 
the  right  of  dower,  or  the  protection  of  dower,  and  appropriate  and  ade- 
and  preservation  of  the  dower  estate.  quate  relief  in  aid  thereof." 
Whore    this    remedy    cannot,    by    its 


465  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  280 

created  by  an  imperfect  levy  by  execution,  where  the  ex- 
ecution and  other  papers  had  all  been  lost  by  the  defend- 
ant's fraud  or  negligence  ;'^  **  a  statute  authorizing  a  garnish- 
ment or  attachment  by  a  proceeding  at  law  does  not  take 
away  nor  abridge  the  equity  jurisdiction  to  enforce  an  equi- 
table attachment  or  sequestration  by  suit  under  the  same 
circumstances  f  in  suits  by  a  ward  against  his  guardian  for 
an  accounting  or  to  enforce  the  trust  duty,  where  a  statute 
has  given  jurisdiction  to  common-law  courts  to  grant  any 
similar  relief;'^  suit  by  a  creditor  to  reach  the  separate 
property  of  a  married  woman,  where  an  action  at  law  for 
the  same  purpose  has  been  permitted  by  statute  f "  in  suits 
to  be  relieved  from  an  illegal  contract,  or  to  restrain  an 
action  brought  or  judgment  obtained  thereon,  although  a 
statute  has  permitted  the  illegality  to  be  set  up  as  a  de- 
fense in  bar  of  any  recovery  on  the  contract  f  statutes  per- 
mitting actions  at  law  against  an  executor  or  administrator 
under  particular  circumstances,  or  for  special  purposes,  do 
not  interfere  with  the  general  equity  jurisdiction  over  the 

5  Bright  V.  Newland,  4  Sneed,  440,  442. 

6  King  V.  Payan,  18  Ark.  583,  587,  588;  Payne  v.  Bullard,  23  Miss.  88, 
90,  55  Am.  Dec.  74  (suit  by  a  judgment  creditor  of  a  corporation  to  recover 
from  a  stockholder  the  unpaid  amount  due  on  his  stock,  not  affected  by  a 
statute  allowing  a  garnishment  at  law  of  such  stockholder)  ;  Lane  v.  Marshall, 
1  Heisk.  30,  34;  but  see,  per  contra,  McGough  v.  Insurance  Bank,  2  Ga.  151, 
153,  154,  46  Am.  Dec.  382. 

7  Grain  v.  Barnes,  1  Md.  Ch.  151,  154. 

8  Mitchell  V.  Otey,  23  Miss.  236,  240. 

9  Bromley  v.  Holland,  7  Yes.  3,  18-20;  Harrington  v.  Du  Chatel,  1  Brown 
Ch.  124;  Clay  v.  Fry,  3  Bibb,  248,  6  Am.  Dec.  654;  Fanning  v.  Dunham,  5 
Johns.  Ch.  122,  9  Am.  Dec.  283;  Gough  v.  Pratt,  9  Md.  520;  Thomas  v.  Watts, 
9  Md.  526,  note;  Lucas  v.  Waul,  12  Smedea  &  M.  157;  West  v.  Beanea,  3  Har. 
&  J.  568 ;  White  v.  Washington,  5  Gratt.  645,  648 ;  Day  v.  Cummings,  19  Vt. 
495;  but,  per  contra,  see  Thompson  v.  Berry,  3  Johns.  Ch.  394,  398;  Sample 
V,  Barnes,  14  How.  70,  73,  75. 

(d)  The  statutory  proceedings  sup-  (e)  Cited    to    this    effect    in    First 

plementary    to    execution    have    been  Nat.  Bank  v.  Albertson  (N.  J.  Ch.), 

held    not    to    exclude    the    equitable  47    Atl.    818.      See    also    Rooney    v. 

remedy  by  creditor's  bill.     Enright  v.  Michael,  84  Ala.  585,  4  South.  421; 

Grant,   5  Utah,   334;   contra,   §   281,  Phippa  v.  Kelly,  12  Oreg.  213,  6  Pao. 

note.     See  on  this  question  Pom.  Eq.  707. 
Rem.,  "  Creditors'  Bills." 

Vol.  1  —  30 


§  280  EQUITY   JURISPRUDENCE.  466 

administration  of  decedents'  estates;^"'  and  statutes  au- 
thorizing courts  of  law  to  grant  some  distinctively  equitable 
relief  to  sureties,  by  means  of  proceedings  in  actions  at  law, 
do  not  alter  nor  abridge  the  equitable  jurisdiction  over 
suretyship,  even  in  giving  the  very  same  relief  ;^^  ^  and  a 
statute  giving  common-law  courts  the  power  to  correct  a 
judgment  fraudulently  obtained  does  not  affect  the  equity 
jurisdiction  to  relieve  against  fraudulent  judgments ;  fraud 
is  a  matter  of  equitable  cognizance,  and  the  jurisdiction  is 
not  lost  by  legislation  giving  the  same  authority  to  courts 
of  law;^^*"  it  is  held  in  several  of  the  states  which  have  not 
adopted  the  reformed  system  of  procedure  that  the  statutes 
permitting  parties  to  actions  at  law  to  testify  as  witnesses 
on  their  own  behalf,  and  to  be  examined  on  behalf  of  their  ad- 
versaries, do  not  in  any  manner  interfere  with  the  ancillary 
jurisdiction  of  equity  to  maintain  suits  for  a  discovery  with- 
out relief,  in  aid  of  proceedings  at  law;^^*  but  this  con- 

10  Clark  v.  Henry's  Adm'r,  9  Mo.  336,  338-340;  Oliveira  v.  University  of 
North  Carolina,  1  Phill.  Eq.  69,  70. 

njrick  v.  Black,  17  N.  J.  Eq.  189,  198,  199;  Smith  v.  Hays,  1  Jones  Eq. 
321,  323;  Hempstead  v,  Watkins,  6  Ark.  317,  355,  368,  42  Am.  Dec.  696; 
Harlan  v.  Wingate's  Adm'r,  2  J.  J.  Marsh.  139,  140. 

12  Babcock  v.  McCamant,  53  111.  214,  217. 

13  Cannon  v.  McNab,  48  Ala.  99;  Millsaps  v.  Pfeiflfer,  44  Miss.  805;  but 
per  contra,  Riopelle  v.  Doellner,  26  Mich.  102;  Hall  v.  Joiner,  1  S.  C.  186; 
and  see  ante,  §§  193,  194. 

(f)  A  statute  giving  probate  courts  rity  Co.  v.  Hardenberg,  53  Conn,  169, 

jurisdiction  of  claims  against  estates,  2  Atl.  391. 

when  the  decedent  has  received  money  (g)     Missouri     Rev.     Stats.     1899, 

in  trust  for  any  purpose,  does  not  ex-  §§  4504-4509,  providing  for  contribu- 

clude   the   jurisdiction   of  a  court  of  tion  between   sureties,  and   authoriz- 

equity  to  enforce   the   trust;    Howell  ing  an  action  at  law  by  one  surety, 

V.  Moores,  127  111.  67,  19  N.  E.  803,  who  has  paid  more  than  his  propoi- 

citing  this  section  of  the  text.     And  tion  of  the  debt,  to  recover  contribu- 

an  act  authorizing  the  court  of  pro-  tion    from    other    sureties,    does    not 

bate,  in  all  cases,  upon  request  of  the  deprive   such   surety   of   his   right  to 

life-tenant,  to  order  the  executor   to  sue  in  equity  for  contribution.    Dysart 

deliver  the  property  to  him  upon  his  v.  Crow,  170  Mo.  275,  70  S.  W.  680. 

giving  a  bond  that  it  shall  be  forth-  (h)  See  also  Darst  v.  Phillips,  41 

coming  for  the  remainderman  at  the  Ohio  St.  514. 

termination  of  the  life  estate  does  not  (i)  In  Union  Passenger  R'y  Co.  v. 

inU-rfere   with    the   general    chancery  Mayor,  etc.,  of  Baltimore,  71  Md.  239, 

powers   of  a  court  of  equity.      Secu-  17  Atl.  933,  it  was  held  that  a  stat- 


467  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  281 

elusion  is  by  no  means  unanimous.  It  has  been  decided  in 
Pennsylvania  that  the  peculiar  system  heretofore  existing 
in  that  state  of  administering  some  equitable  remedies 
through  the  machinery  of  actions  at  law  is  not  abrogated 
by  statutes  which  conferred  a  limited  equity  jurisdiction 
upon  the  courts.^^  The  radical  change  in  the  equitable  and 
legal  procedure  effected  in  many  states,  which  permits 
equitable  defenses  to  be  set  up,  and  even  affirmative  equi- 
table relief  to  be  obtained,  by  the  defendant  in  an  action  at 
law  has  not,  it  has  sometimes  been  held,  abridged  the 
former  well-established  jurisdiction  of  equity  to  restrain 
actions  and  judgments  at  law  on  the  ground  that  the  con- 
troversy involved  some  equitable  right  or  interest  ;'^^  but 
this  question  has  been  differently  answered  by  different 
courts,  and  on  account  of  its  great  importance  it  will  be 
separately  examined  in  the  following  chapter.^® 

§  281.  When  Such  Statute  Destroys  the  Equity  Jurisdiction. 
—  On  the  other  hand,  the  decisions  all  admit  that  if  the 
statute  contains  words  negativing  or  expressly  taking  away 
the  previous  equitable  jurisdiction,  or  even  if,  upon  a  fair 
and  reasonable  interpretation,  the  whole  scope  of  the  stat- 
ute shows,  by  necessary  intendment,  a  clear  legislative  in- 
tention to  abrogate  such  jurisdiction,  then  the  former  juris- 
diction of  equity  is  thereby  ended.^  *     The  following  ex- 

l4Biddle  v.  Moore,  3  Pa.  St.  161,  175,  176;  Wesley  Church  v.  Moore,  10 
Pa.  St.  273,  279-282.  Tliese  cases  arose  under  early  ptatutes,  which  gave 
only  a  partial  equity  jurisdiction. 

IB  Dorsey  v.  Reese,  14  B.  Mon.  127,  128 ;  and  see,  on  this  question,  Erie 
Railway  Co.  v.  Ramsey,  45  N.  Y.  637;  Schell  v.  Erie  R'y  Co.,  61  Barb.  368. 

16  See  post,  §  357. 

1  See  cases  cited  ante,  in  first  note  under  §  279. 

ute  allowing  discovery  at  law  where  court  said  that  "  a  court  of  equity  is 

it  might  be  allowed  in  chancery  did  never  at  liberty  to  draw  to  its  general 

not   abrogate   the    chancery   jurisdic-  jurisdiction  a  question  remitted  to  a 

tion.  competent  and  sufficient  authority  by 

(j)  See  Black  v.  Smith,  13  W.  Va.  express  command  of  a  statute,  unless 

780.  under  some  very  exceptional  circum- 

(a)  See    MacLaury    v.    Hart,     121  stances,  which  do  not  exist  here."    A 

N.  Y.  636,  24  N.  E.  1013,  where  the  statute  provided  for  consolidation  of 


§  281  EQUITY   JURISPRUDENCE.  468 

amples  will  illustrate  the  effect  of  such  enactments:"  A 
statute  authorizing  common-law  courts  to  render  a  judg- 
ment abating  a  private  nuisance  complained  of  in  an  action 
brought  to  recover  damages  therefor  was  held  to  have 
abrogated  the  equitable  jurisdiction  to  entertain  a  suit  for 
the  same  relief,  although  the  jurisdiction  to  restrain  a  pri- 
vate nuisance  remained  unaltered.^  *^  A  statute  permitting 
an  action  at  law  to  recover  compensation  for  work  and 
labor  or  other  services  rendered  to  a  trust  estate  on  the 
employment  of  a  trustee  has  taken  away  the  jurisdiction  of 
equity  by  suit  to  enforce  such  a  demand  as  a  lien  upon  the 
trust  property.^  ^  It  has  been  held  that  a  court  of  equity  has 
no  jurisdiction  to  entertain  a  suit  to  recover  the  amount  due 
on  a  lost  non-negotiable  note,  since  the  holder  has  a  complete 
remedy  at  law.^  The  statutes  permitting  the  parties  to 
actions  at  law  to  be  examined  as  witnesses  are  held,  in 
several  of  the  states,  to  abolish  the  auxiliary  equitable  ju- 
risdiction of  discovery  in  aid  of  proceedings  in  courts  of 
law.'^    Whenever  a  legal  right  is  wholly  created  by  statute, 

2  Remington  v.  Foster,  42  Wis.  COS,  609. 

3  Askew  V.  Myrick,  54  Ala.  30. 

4Messop  V.  Eadon,  16  Yes.  430,  433,  434;  see  cases  cited  ante,  under  §§  279, 
280. 

CHall  V.  Joiner,  1  S.  C.  186;  Riopelle  v.  Doellner,  26  Mich.  102.  See 
f  §  193,  194,  209. 

church  corporations  upon  consent  of  Robeson,  62  Iowa,  540,  17  N.  W.  888, 

the  supreme  court.     It  was  held  that  where  a  similar  statute  was  held  not 

«quity  could  not  take  jurisdiction.  to  have  imposed  any  exception  ujwn  a 

(b)  In  Moore  v.  Mclntyre,  110  general  statutory  provision  which 
Mich.  237,  68  N.  W.  130,  a  statutory  read:  "An  injunction  may  be  ob- 
remedy  by  certiorari  in  matters  of  tained  in  all  cases  where  such  relief 
epecial  assessments  was  held  to  be  would  have  been  granted  in  equity 
exclusive.  In  Barnes  v.  Sammons,  previous  to  the  adoption  of  this  code." 
128  Ind.  596,  27  N.  E.  747,  it  was  held  (d)  It  has  been  held  that  statutory 
that  a  surety  cannot  maintain  a  suit  proceedings  supplementary  to  execu- 
in  equity  to  compel  the  owner  of  a  tion  are  exclusive  of  the  equitable 
promissory  note  to  bring  suit  on  it  remedy  of  a  creditor's  bill:  Pacific 
and  procecfl  to  collect  it,  for  an  ade-  Rank  v.  Robinson,  57  Cal.  520,  40  Am. 
quatc  remedy  is  provided  by  sections  Rep.  120 ;  contra,  see  ante,  §  280, 
1210,  1211,  Rev.  St.  1881.  note.     See  on  this  question  Pom.  £q. 

(c)  Compare,  however,  Bujuhnell  ▼.  Rem.,  "  Creditors'  Bills." 


469  JUBISDICTION    ONCE    EXISTING    NOT    LOST.  §  281 

and  a  legal  remedy  for  its  violation  is  also  given  by  the 
same  statute,  a  court  of  equity  has  no  authority  to  inter- 
fere with  its  reliefs,  even  though  the  statutory  remedy  is 
difficult,  uncertain,  and  incomplete.®  ^  Finally,  where  there 
is  no  statute,  the  equitable  jurisdiction  may  become  unused, 
obsolete,  and  practically  abolished,  since  the  courts  of  law 
have  assumed  the  power  to  grant  a  simple,  certain,  and  per- 
fectly efficient  remedy.  The  practical  abandonment  of  the 
equity  jurisdiction  over  suits  by  the  assignees  of  ordinary 
things  in  action  is  a  striking  illustration  of  the  change 
which  may  thus  be  effected.  As  a  general  rule,  a  court  of 
equity  will  not  now  entertain  a  suit  brought  by  the  assignee 
of  a  debt  or  of  a  chose  in  action  which  is  a  mere  legal  de- 
mand.^ The  recent  statutes  of  many  states,  as  well  as  of 
England,  requiring  the  assignee  to  sue  at  law  in  his  own 
name  confirm  and  establish  this  rule. 

8  Janney  v.  Buel,  55  Ala.  408;  Coleman  v.  Freeman,  3  Ga.  137. 

7  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  596,  615,  per  Walworth,  C:  "A» 
a  general  rule,  this  court  will  not  entertain  a  suit  brought  by  the  assignee 
of  a  debt  or  of  a  chose  in  action  which  is  a  mere  legal  demand;  but  will  leave 
him  to  his  remedy  at  law  by  a  suit  in  the  name  of  the  assignor  (citing  Carter 
V.  United  Ins.  Co.,  1  Johns.  Ch.  463;  Hammond  v.  Messinger,  9  Sim.  327; 
Moseley  v.  Boush,  4  Rand.  392;  Adair  v.  Winchester,  7  Gill  &  J.  114;  Smiley 
V.  Bell,  Mart.  &  Y.  378,  17  Am.  Dec.  813).  Where,  however,  special  circum- 
stances render  it  necessary  for  the  assignee  to  come  into  a  court  of  equity 
for  relief,  to  prevent  a  failure  of  justice,  he  will  be  allowed  to  bring  a  suit 
here  upon  a  mere  legal  demand";  citing  as  an  example,  Lenox  v.  Roberts,  2 
Wheat.  373. 

(e)   See  Dimmick  v.  Delaware,  L.  &  chanic's  lien  is  exclusive)  ;  Walker  v. 

W.  R.  R.  Co.,  180  Pa.  St.  468,  36  Atl.  Daimwood,  80  Ala.  245;  Corrugating 

866.     This  paragraph  of  the  text  is  Co.  v.  Thacher,   87   Ala,  458,   465,   6 

cited  to  the  same  effect  in  Sheffield  South.  366;   Phillips  v.  Ash's  Heirs, 

City   Co.  v.  Tradesmen's  Nat.   Bank,  63  Ala.  414;   Wimberly  v.  Mayberry,. 

131   Ala.   185,   32   South.  598;   citing  94  Ala.  255,  10  South.  157,  14  L.  R. 

Chandler  v.  Hanna,  73  Ala.  392  (stat-  A.  305. 
utory  remedy  for  enforcement  of  me- 


§  282  EQUITY   JURISPEUDENCB.  470 


CHAPTER  III. 

THE  jurtsdiction  as  held  by  the  courts  of 

THE    SEVERxiL   STATES,  AND   BY   THE   COUllTS 
OF  THE   UNITED   STATES. 


SECTION  I. 

ABSTRACT  OF  LEGISLATIVE  PROVISIONS. 

ANALYSIS. 

I  282.  Source  of  jurisdiction,  both  legal  and  equitable,  of  the  courts  In  the 

American  states. 
{  283.  Division  of  the  states  into  four  classes  with  respect  to  the  amount  of 

equity  jurisdiction  given  to  their  courts, 
S  284.  The  first  class  of  states. 
§  285.  The  second  class  of  states. 
§  280.  Tlie  third  class  of  states. 
§  287.  The  fourth  class  of  states. 
S  288.  Summary  of  conclusions. 

§  282.  Source  of  the  Jurisdiction  of  the  American  Courts. — 
In  the  preceding  chapters  I  have  described  the  general 
equitable  jurisdiction  in  its  condition  of  complete  develop- 
ment, unabridged  by  any  express  statutory  legislation,  as  it 
has  been  exercised  by  the  English  court  of  chancery.  As 
a  matter  of  fact,  however,  this  unliwited  jurisdiction  is  not 
now  possessed  by  any  American  tribunal,  state  or  national. 
In  eveiy  commonwealth  some  important  branch  of  it  has 
been  lopped  off  by  statute.  It  becomes  necessary,  therefore, 
that  I  should  give,  in  addition  to  the  foregoing  general 
discussion,  some  account  of  the  particular  jurisdiction 
which  now  exists  in  the  courts  of  each  state  and  of  the 
United  States ;  that  I  should  show  to  what  extent  the  powers 
of  the  Finglish  chancery  have  been  conferred  or  withheld  by 
the  state  and  national  constitutions  and  legislation.  To 
this  end  I  shall  first  exhibit  the  statutory  basis  and  authority 


471  ABSTRACT    OF    LEGISLATIVE   PROVISIONS.  §  282 

for  the  jurisdiction  which  are  found  in  the  laws  of  the 
United  States  and  of  all  the  individual  states.  This  pre- 
liminary explanation  is  absolutely  essential  to  a  correct  un- 
derstanding of  the  American  equity  jurisprudence,  since  the 
equitable  powers  held  by  all  our  courts,  whether  of  the 
nation  or  of  the  states,  are  wholly  derived  from  and 
measured  by  the  provisions  of  statutes  or  of  constitutions. 
The  highest  courts  of  original  jurisdiction  in  each  of  the 
states  are  understood  to  derive  their  common-law  powers, 
substantially  co-extensive  with  those  possessed  by  the 
superior  law  courts  of  England,  merely  from  the  fact  of 
their  being  created  as  such  tribunals,  and  without  any  ex- 
press grant  of  authority  being  essential.  Although  such  a 
grant  of  authority  or  enumeration  of  powers  has  frequently 
been  made  either  by  the  constitutions  or  by  the  statutes  of 
different  states,  this  was  really  unnecessary.  These  tri- 
bunals are  deemed  to  possess  by  their  very  creation  all 
the  common-law  powers,  not  incompatible  with  our  institu- 
tions, which  have  not  been  expressly  withheld  or  prohibited, 
in  Liie  same  manner  as  the  state  legislatures  are  understood 
to  hold  by  their  very  creation  all  the  authority  of  the 
English  Parliament  not  expressly  withdrawn  by  the  na- 
tional and  state  constitutions.  It  is  not  so  with  the  equi- 
table jurisdiction  of  the  American  courts.  For  that  there 
must  be  an  authority  either  expressly  conferred,  or  given 
by  necessary  implication  from  the  express  terms,  in  some 
provision  of  the  constitution  or  of  a  statute.  In  other 
words,  the  American  state  courts  do  not  derive  their  equi- 
table powers,  as  they  do  their  common-law  functions,  as  a 
part  of  the  entire  common-law  system  of  jurisprudence 
which  we  have  inherited  from  England,  and  which  is 
assumed  to  exist  even  independently  of  legislation;  their 
equitable  jurisdiction  is  wholly  the  creature  of  statute,  and 
is  measured  in  each  state  by  the  extent  and  limitations  of  the 
statutory  authority.^ 

1  It  hardly  need  be  said  that  the  constitution  of  a  state  is  here  included 
under  the  designation  "statute";  for  the  constitution  is  only  a  higher  and 
more  compulsory  statute.     Certain  decisions   may  be  found  in  a  very  few 


§  283  EQUITY   JURISPRUDENCE.  472 

§  283.  Amount  of  Equity  Jurisdiction  —  Four  Classes  of 
States. —  In  some  of  the  states  this  statutory  delegation 
of  power  is  so  broad  and  comprehensive  that  the  jurisdic- 
tion which  it  creates  is  substantially  identical  with  that 
possessed  by  the  English  court  of  chancery,  except  so  far  as 
specific  subjects,  like  administration,  have  been  expressly 
given  to  different  tribunals;  but  in  others  the  delegation 
of  power  is  so  special  in  its  nature  and  limited  in  its  extent 
that  a  reference  to  the  statutes  themselves  on  the  part  of 
the  courts  as  the  source  and  measure  of  their  jurisdiction 
is  a  matter  of  constant  practice  and  of  absolute  necessity. 
A  correct  knowledge  of  these  statutory  provisions  in  the 
various  states  is  of  the  highest  importance  from  another 
point  of  view;  without  it  the  force  and  authority  of  deci- 
sions rendered  in  any  particular  state  cannot  be  rightly  ap- 
preciated by  the  bench  and  bar  of  other  commonwealths.^ 
It  will  not  be  found  necessary  to  examine  in  detail  the  stat- 
utes of  each  state  separately.  A  comparatively  few  distinct 
types  of  legislation  have  been  adopted  and  closely  followed 
throughout  the  constitutions  and  statutes;  and  it  is  pos- 
sible to  arrange  all  the  states  into  a  few  classes,  in  each  of 
which  the  equitable  jurisdiction  is  substantially  the  same 
with  respect  to  its  statutory  origin,  nature,  and  extent, 
although  some  differences  may  exist  in  the  judicial  inter- 
pretation given  to  these  legislative  provisions.  Such  dif- 
ferences will  be  noticed  in  a  subsequent  section  of  this 
chapter.  This  classification  is  made  without  any  reference 
to  the  external  form  and  organization  of  the  courts,  and  is 
based  wholly  upon  the  amount  of  equitable  jurisdiction 
created  and  conferred  by  the  legislation. 

otates  holding  that  the  equity  jurisdiction  of  those  states  is  commensurate 
with  that  possessed  by  the  English  chancery.  In  all  these  states,  however, 
a  constitutional  provision  not  only  created  a  court  of  equity,  but  in  some 
fiuOTicient  words  conferred  upon  it  such  a  general  jurisdiction. 

'  As  an  illustration,  the  modern  decisions  in  Massachusetts  upon  questions 
of  jj'f-ncral  equity  jurisprudence,  able  and  learned  as  they  are,  would  often  be 
very  misloading  in  other  states,  if  the  statutes  upon  which  the  jurisdiction 
of  itn  courts  rests  were  not  accurately  known. 


473  ABSTEACT    OF    LEGISLATIVE    PROVISIONS.  §  284 

§  284.  1.  Class  First. —  The  first  class  embraces  those 
states  in  which  the  constitutions  or  statutes  have  in  ex- 
press terms  created  and  conferred  an  equity  jurisdiction 
identical  or  co-extensive  with  that  possessed  by  the  English 
court  of  chancery,  so  far  as  is  compatible  with  our  forms 
of  government,  political  institutions,  and  public  policy.^  The 
jurisdiction  thus  taken  as  the  criterion  and  measure  is  that 
held  and  exercised  by  the  English  court  of  chancery  by 
virtue  of  its  general  powers  as  a  court  of  justice;  and  it 
does  not  include  that  special  authority  or  jurisdiction  dele- 
gated to  the  chancellor  individually,  as  a  representative  of 
the  crown  in  its  capacity  of  parens  patrice.  This  latter 
authority,  so  far  as  it  exists  at  all,  is  possessed  only  by  the 
state  legislatures.  The  following  states  compose  this  class : 
Michigan,  New  York,  Vermont.^ 

1  It  should  be  noticed,  however,  that  in  all  these  states,  notwithstanding 
the  broad  grant  of  general  power,  certain  particular  subjects  belonging  to 
the  jurisdiction  of  the  English  chancery  have  been  given  to  the  exclusive 
cognizance  of  some  other  tribunal,  and  thus  the  general  equitable  jurisdiction 
has  been  abridged.  The  administration  of  decedents'  estates  is  a  very  striking 
example,  which  has  been  intrusted  to  the  probate  courts. 

^Michigan. —  The  constitution  (art.  VI.)  establishes  a  supreme  court  with 
appellate  jurisdiction  only  (§3),  and  circuit  courts  which  "  shall  have  origi- 
nal jurisdiction  in  all  matters,  civil  and  criminal,  not  excepted  in  this  consti- 
tution, and  not  prohibited  by  law."  2  Comp.  Laws  1871,  chap.  176,  §  l.» 
"  The  several  circuit  courts  of  this  state  shall  be  courts  of  chancery  within  and 
for  their  respective  counties";  and  Comp.  Laws  1871,  §  21:l»  "The  powers 
and  jurisdiction  of  the  circuit  courts  in  chancery  in  and  for  their  respective 
counties  shall  be  co-extensive  with  the  powers  and  jurisdiction  of  the  court  of 
chancery  in  England,  with  the  exceptions,  additions,  and  limitations  created 
and  imposed  by  the  constitution  and  laws  of  this  state."  These  provisions 
were  also  foxmd  in  the  Revised  Statutes  of  1846  (chap.  90),  which  abolished 
the  former  separate  court  of  chancery.  The  latter  of  the  two  sections  above 
quoted  (viz.,  §  21)  was  also  found  in  the  Revised  Statutes  of  1838  (p.  365, 
§  23),  and  applied  to  the  then  existing  separate  court  of  chancery. 

New  York. —  The  constitutions  of  1777  and  of  1822  established  a  separate 
court  of  chancery,  and  a  supreme  court  with  general  original  jurisdiction  in 
law.  The  constitution  of  184C,  in  its  original  form,  and  as  amended  in  1869, 
provides  (art.  VI.,  §  6),  that  "the  supreme  court  shall  have  general  juris- 
diction in  law  and  equity  " ;  and  by  article  XIV.,  sections  5  and  6,  that  all  the 
powers  of  the  former  court  of  chancery  are  transferred  to  the  supreme  court. 

(a)   Michigan.  —  Howell's  Stats.  (*>)  Michigan.  —  Howell's  Stats., 

1882,  §  6592.  {  6611. 


§  285  EQUITY   JURISPRUDENCE.  474 

§  285.  2.  Class  Second. —  The  second  class  embraces 
those  states  in  which  the  constitutions,  not  in  express 
terms,  but  by  necessary  implication,  create  and  confer  a 
general  equity  jurisdiction  substantially  the  same  as  that 
possessed  by  the  English  court  of  chancery,  except  so  far 
as  modified  or  limited  by  other  portions  of  the  state  legis- 
lation. In  this  type  of  legislative  action,  no  attempt  is 
made  by  any  clause  to  particularly  define  the  extent  of  the 
jurisdiction  by  comparing  it  with  that  held  by  the  Eng- 
lish chancery;  the  language  employed  is  always  general; 
it  declares  that  certain  courts  *'  have  power  to  decide  all 
cases  in  equity ; "  or  that  they ' '  have  jurisdiction  in  equity/* 
or  that  they  shall  exercise  their  powers  "  according  to  the 
course  of  equity;"  and  it  thereby  plainly  implies  that  the 
equity  powers  and  jurisdiction  thus  recognized  and  con- 
ferred are  substantially  those  possessed  by  the  English 
court  of  chancery.  In  many  of  these  states  the  general 
clause  is  added  by  way  of  limitation,  that  equity  powers 
shall  not  exist  where  there  is  ' '  a  plain,  adequate,  and  com- 
plete remedy  at  law."  The  effect  given  to  this  provision 
will  be  explained  in  the  following  section.  It  should  be 
added,  however,  in  this  connection,  that  in  many  of  the 
states  the  ordinary  jurisdiction  of  equity  thus  conferred 
in  such  general  terms  is  greatly  abridged,  restricted,  or 

The  Revised  Statutes,  which  went  into  operation  in  1830,  while  the  court  of 
chancery  was  in  existence,  enact  (5th  ed.,  vol.  3,  pt.  III.,  chap,  1,  tit.  2,  art.  2, 
§  42,  p.  264):  "The  powers  and  jurisdiction  of  the  court  of  chancery  are 
co-extensive  with  the  powers  and  jurisdiction  of  the  court  of  chancery  in  Eng- 
land, with  the  exceptions,  additions,  and  limitations  created  and  imposed  by 
the  constitution  and  laws  of  this  state."  This  continues  to  be  the  measure 
of  the  equitable  jurisdiction  of  the  courts  of  New  York,  although  both  the 
legal  and  the  equitable  powers  are  now  administered  together  by  the  same 
court  and  in  the  same  proceeding. 

Vermont.— The  General  Statutes  of  1862-70  (tit.  XV.,  chap.  20,  §  4)c 
confer  the  equity  jurisdiction  upon  the  judges  of  the  supreme  court  virtually 
acting  as  chancellors;  and  (Gen.  Stats.,  §  2)d  define  the  extent  of  that  juris- 
diction in  language  identical  with  that  found  in  the  statutes  of  Michigan  and 
of  New  York,  quoted  above. 

(«)  And  the  Revised  Lawa  of  18S0,  (d)  Rev.  Laws,  695. 

S  698. 


475  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  285 

modified,  with  respect  to  some  of  its  branches  or  heads, 
by  other  statutes,  especially  by  those  defining  and  regu- 
lating the  powers  of  the  various  subordinate  courts.*  In 
this  class,  which  is  the  most  numerous  of  all,  are  included 
the  following  states:  Alabama,  California,  Connecticut, 
Delaware,  Florida,  Georgia,  Illinois,  Iowa,  Kentucky, 
Maryland,  Mississippi,  Nebraska,  Nevada,  New  Jersey, 
North  Carolina,  Oregon,  Rhode  Island,  Tennessee,  Virginia, 
West  Virginia,  Wisconsin,  and  the  United  States.^ 

1  As  illustrations,  in  several  of  the  states  the  original  jurisdiction  over 
trusts  is  limited  by  statutes  abolishing  or  restricting  express  trusts,  and 
the  like;  and  in  nearly  all,  if  not  all,  of  them  the  jurisdiction  over  the  ad- 
ministration of  decedents'  estates  is  greatly  restricted,  or  perhaps  taken  away, 
by  statutes  giving  exclusive  power  in  such  matters  to  courts  of  probate. 

2  I  omit,  in  this  note,  all  reference  to  courts  of  appellate  jurisdiction,  as  un- 
necessary. It  is  enough  to  say  that  in  every  state,  and  in  the  United  States, 
there  is  a  tribunal  with  svich  a  jurisdiction  both  in  law  and  in  equity. 

United  States. —  Rev.  Stats.,  §  629 :  "  Circuit  courts  have  jurisdiction  in 
all  suits  of  a  civil  nature,  at  common  law  and  in  equity,  where  the  matter 
in  dispute  exceeds  the  sum  or  value  of  five  hundred  dollars,"  in  the  cases  pro- 
vided for  by  the  constitution,  and  in  a  number  of  specified  cases  arising  under 
statutes  of  Congress.  §  723:  "Suits  in  equity  shall  not  be  sustained  in 
either  of  the  courts  of  the  United  States  in  any  case  where  a  plain,  ade- 
quate, and  complete  remedy  may  be  had  at  law."  These  provisions  formed 
sections  11  and  16  of  chapter  20  of  the  Laws  of  1789,  commonly  known  as  the 
"  Judiciary  Act." 

Alabama. —  Rev.  Code  1867,  §  698 :«  "Ordinary  jurisdiction.  The  powers 
and  jurisdiction  of  the  courts  of  chancery  extend, —  1.  To  all  civil  causes  in 
which  a  plain  and  adequate  remedy  is  not  provided  in  the  other  judicial  tri- 
bunals; 2.  To  all  cases  founded  on  a  gambling  consideration,  so  far  as  to 
sustain  a  bill  of  discovery  and  grant  relief;  3.  To  subject  an  equitable  title 
or  claim  to  real  estate  to  the  payment  of  debts ;  4.  To  such  other  cases  as  may 
be  provided  by  law."  Rev.  Code  1867,  §  699  :to  "Extraordinary  jurisdiction. 
Chancellors  may  exercise  the  extraordinary  jurisdiction  granted  to  such  ofiicer 
by  the  common  law  in  cases  of  necessity  when  adequate  provision  has  not 
been  made  for  its  exercise  by  some  other  officer  or  in  other  courts,  and  with 
the  exceptions,  limitations,  and  additions  imposed  by  the  laws  of  this  state." 
The  whole  state  is  separated  into  three  "  chancery  divisions,"  and  a  chancellor 
is  appointed  in  each:     Rev.  Code  1867,  §§  695,  697.c 

California. —  Const.  1879,  art.  VI.,  §  4:  "The  supreme  court  shall  have 
appellate  jurisdiction  in  all  cases  in  equity,  except  such  as  arise  in  justices' 
courts,"  and  in  all  cases  at  law.  §  5 :  "  The  superior  courts  shall  have 
original  jurisdiction  in  all  cases  in  equity,"  and  in  cases  at  law.     Code  Civ. 

(a)  Alabama.—  Code  1886,  §  720.  (e)    These     "  divisions  "     are     now 

(b)  Code  1886,  §  721.  four  in  number.     Code  1886,  §  713. 


§  286  EQUITY   JURISPRUDENjCE.  47& 

§  286.  3.  Class  Third. —  The  third  class  embraces  those 
states  in  which  the  constitutions  and  statutes  do  not  confer 
a  general  equity  jurisdiction  by  any  single  comprehensive 

Proc,  §  57 :  "  The  jurisdiction  of  the  superior  courts  extends, —  1.  To  all 
civil  actions  for  relief  formerly  given  in  courts  of  equity,"  and  also  to  other 
civil  actions. 

Connecticut. —  Gen.  Stats.  1875,  p.  40,  §  2:  "  Tlie  superior  court  shall 
have  jurisdiction  of  all  suits  in  equity  which  are  not  within  the  sole  jurisdic- 
tion of  other  courts."  P.  413,  §  2:  Jurisdiction,  where  the  amount  involved 
does  not  exceed  five  hundred  dollars,  is  given  to  the  court  of  common  pleas, 
and  for  cases  exceeding  that  amoimt,  to  the  superior  court.  §  5 :  "  Court» 
having  jurisdiction  in  suits  in  equity  shall  proceed  therein  according  to  the 
rules  and  practice  of  equity,  and  take  cognizance  only  of  matters  in  which 
adequate  relief  cannot  be  had  in  the  ordinary  course  of  law."  'Note,  however, 
that  this  clause,  so  far  as  it  speaks  about  the  "  proceeding  in  suits  in  equity 
according  to  the  practice  of  equity,"  has  been  modified  by  more  recent  legisla- 
tion, which  has  adopted  substantially  the  principles  and  methods  of  the 
reformed  procedure  (Practice  Act  of  1879),  and  which  is  mentioned  in  a 
subsequent  paragraph. 

Delaioare. —  The  constitution  (art.  VI.,  §  3)  establishes  a  court  of  chan- 
cery. §  5 :  "  The  chancellor  shall  hold  the  court  of  chancery.  This  court 
shall  have  all  the  jurisdiction  and  powers  vested  by  the  laws  of  this  state  in 
the  court  of  chancery."  §  13:  "  Until  the  general  assembly  shall  otherwise  pro- 
vide, the  chancellor  shall  exercise  all  the  powers  which  any  law  of  thia 
state  vests  in  the  chancellor,  besides  the  general  powers  of  the  court  of  chan- 
cery." Rev.  Stats.  1852,  p.  320,  chap.  95,  §  1 :  "  The  court  of  chancery  shall 
have  full  power  to  hear  and  decree  all  matters  and  causes  in  equity;  .  .  . 
provided,  that  the  chancellor  shall  not  have  power  to  determine  any  matter 
wherein  sufficient  remedy  may  be  had,  by  common  law  or  statute,  before  any 
other  court  or  jurisdiction  of  this  state."  Jurisdiction  in  several  particular 
cases,  or  for  particular  reliefs,  is  also  given  by  other  statutory  provisions. 

Florida. —  Bush's  Digest  of  Statutes,  1872,  chap.  92,  §  22:«1  "  Circuit  courts 
shall  have  original  jurisdiction  in  all  cases  of  equity,"  and  also  of  law.  The 
constitution  (art.  VI.,  §  8)  contains  exactly  the  same  provision.  There  is  no 
further  definition  or  description  of  the  equitable  jurisdiction. 

Georgia. —  Const.  1868,  art.  V.,  sec.  2,  §  2:  The  supreme  court  has  only  an 
appellate  jurisdiction.  Sec.  3,  §  2:  The  superior  courts  have  "  exclusive  original 
jurisdiction  in  equity  cases."  Code  1873,  p.  45,  §  218 :«  The  supreme  court 
has  an  appellate  jurisdiction  only.  Code  1873,  p.  50,  §  246:'  The  superior 
courts  have  original  jurisdiction  and  authority  in  all  civil  causes, —  "  2.  To 
exerci.se  the  powers  of  a  court  of  equity." 

Illinois. —  Const.,  art.  VI.,  §  12:  "Circuit  courts  have  original  jurisdic- 
tion in  all  causes  in  law  and  equity."  Gross's  III.  Stats.  1871-74,  vol.  2, 
p.  31,  chap.  21,   §   l:8f     The  circuit  courts  and  the  superior  courts  of  Cook 

(d)    /''torido.  —  McLellan's      Digest,  (')  Code  1882,  p.  62. 

1881,  chap.  52,  §  22.  (K)   /^inois.  —  llurd's       111.       Rev. 

<«•)  Ocorjria.— Code  1882,  p.  65.  Stats.  1889,  p.  212,  chap.  22,  8  1. 


477  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  286 

provision,  or  single  grant  of  power*;  but  enumerate  and 
specify  the  particular  and  partial  lieads  or  divisions  of 
equity  jurisprudence  over  which   the  jurisdiction  of  the 

county  (i.  e.,  of  Cliicago),  "in  all  causes  of  which  they  may  have  jurisdiction 
as  courts  of  chancery,  shall  have  power  to  proceed  therein  according  to  the 
mode  herein  provided,  and  when  no  provision  is  made  by  this  act,  according  to 
the  general  usage  and  practice  of  courts  of  equity." 

lovM. —  Const.,  art.  5,  §  6 :  "  Tlie  district  court  shall  be  a  court  of  law 
and  equity,  which  shall  be  distinct  and  separate  jurisdictions."  Code  of 
1873,  §  161 :  "  The  district  courts  shall  have  and  exercise  general  original 
jurisdiction,  both  civil  and  criminal,  when  not  otherwise  provided."  §  162: 
"  The  circuit  court  shall  have  and  exercise  general  original  jurisdiction  con- 
current with  the  district  courts  in  all  civil  actions  and  special  proceedings." 
§  2507:  All  forms  of  action  are  abolished;  but  two  kinds  of  proceeding  by 
the  "  civil  action  "  are  allowed ;  namely,  the  "  ordinary  "  and  the  "  equitable." 
§  2508 :  "  PlaintiiT  may  prosecute  his  action  by  equitable  proceedings  in  all 
-cases  where  courts  of  equity,  before  the  adoption  of  this  code,  had  jurisdiction, 
and  must  so  proceed  in  all  cases  where  such  jurisdiction  was  exclusive." 

Kentucky. —  Stanton's  Rev.  Stats.  1867,  vol.  1,  p.  310  :li  "  The  circuit  court 
has  original  jurisdiction  of  all  matters,  both  in  law  and  equity,  within  its 
county,  of  which  jurisdiction  is  not  by  law  exclusively  delegated  to  some  other 
tribunal."  Pp.  343,  3G0:  A  special  court  is  established  in  certain  districts 
for  the  hearing  and  decision  of  all  equitable  actions  which  would  otherwise 
be  heard  by  the  circuit  courts  of  those  districts. 

Maryland. —  Code  1860,  p.  82,  §  56:1  "The  judges  of  the  several  judicial 
circuits,  and  the  judge  of  the  circuit  court  for  Baltimore  city,  shall  each, 
in  his  respective  circuit,  have  and  exercise  all  the  power,  authority,  and 
jurisdiction  which  the  court  of  chancery  formerly  held  and  exercised,  except 
in  so  far  as  the  same  may  be  modified  by  this  code."  These  courts  also  have 
original  jurisdiction  in  cases  at  law. 

Mississippi. —  Const.  1868,  art.  VI.,  §  4:  The  supreme  court  has  only  an 
appellate  jurisdiction.  §  16:  Chancery  courts  shall  be  established  in  each 
county.  Rev.  Code  1871,  p.  191,  chap.  9,  art.  3,  §  974  :J  "  The  chancery  courts 
shall  have  full  jurisdiction  in  all  matters  in  equity,  and  of  divorce  and  ali- 
mony; in  all  matters  testamentary  and  of  administration,  in  minors'  business, 
and  allotment  of  dower;  and  in  cases  of  idiocy,  lunacy,  and  persons  non 
compos  mentis,  as  well  as  of  such  other  matters  and  cases  as  may  be  provided 
for  by  law." 

Nebraska. —  Const.,  art.  XIV.,  §  3:lt  "The  supreme  court  and  the  district 
courts  shall  have  both  chancery  and  common-law  jurisdiction."! 

(1»)    Kentucky.— Gen.    Stats.  1887,           (»)  Comp.    Laws     1889,    chap.     19, 

p.  353.  §    24:      "The    district    courts    shall 

(1)   Maryland.  —  Pub.     Gen.  Laws       have   and   exercise   general,   original, 

1888,  art.  16,  §  70.  and  appellate  jurisdiction  in  all  mat- 

(j)    Mississippi. —  Rev.    Code  1880,       ters  both  civil   and   criminal,   except 

f  1829.  where  otherwise  provided." 

(k)  Neiraeka.  — Const.    1875,    art. 
VI.,  §  9. 


§  286  EQUITY   JURISPRUDENCE.  478 

courts  shall  extend,  with  various  restrictions  and  limita- 
tions. The  equitable  jurisdiction  thus  created  in  any  state 
is  not  co-extensive  with  that  possessed  by  the  English  court 

Nevada. —  Const.,  art.  VI.,  §  6:  "The  district  courts  in  the  several  judicial 
districts  shall  have  original  jurisdiction  in  all  cases  in  equity,"  and  also  in 
cases  at  law.  Comp.  Laws  1873,  §  925;  Gen.  Stats.  1885,  §  2439:  A  pro- 
vision exactly  the  same  as  the  last  preceding.  Comp.  Laws  1873,  §  1064 :»» 
"  There  shall  be  in  this  state  but  one  form  of  civil  action,"  etc.  This  is 
section  1  of  the  Code  of  Civil  Practice,  passed  March  8,  1869. 

liew  Jersey. —  The  constitution  (art.  VI.,  §  I)  establishes  a  court  of  errors 
and  appeals  of  the  last  resort  in  all  cases;  a  court  of  chancery;  a  supreme 
court ;  and  circuit  courts.  §  4 :  The  court  of  chancery  shall  consist  of  a  chan- 
cellor. §  5:  The  supreme  court  and  circuit  courts  have  jurisdiction  at  law 
only.  The  Digest  of  Laws  by  Nixon  (1709-1868)  contains  no  statutory  pro- 
vision defining  the  extent  of  the  chancery  jurisdiction.  A  late  statute  has 
created  the  office  of  vice-chancellor. 

'North  Carolina. —  The  constitution  of  1868  (art.  IV.,  §  1)  abolishes  the 
distinction  between  actions  at  law  and  suits  in  equity;  and  (§4)  creates  a 
supreme  court  and  superior  courts  having  jurisdiction  in  law  and  in  equity. 
A  code  of  procedure  identical  with  that  originally  adopted  in  New  York  has 
been  enacted.  Rev.  Code  1854,  chap.  32,  §  1 :  "  Each  superior  court  of  law 
shall  also  be  and  act  as  a  court  of  equity  in  the  same  county,  and  possess  all 
the  powers  and  authorities  within  the  same  that  the  court  of  chancery  which 
was  formerly  held  within  this  state  under  the  colonial  government  used  and 
exercised,  and  that  are  properly  and  rightfully  incident  to  such  a  court." 

Oregon. —  The  constitution  (art.  VII.,  §  1)  creates  a  supreme  court  and 
circuit  courts,  etc.,  "  having  general  jurisdiction  to  be  defined,  limited,  and 
regulated  by  law."  §  9:  "All  judicial  power,  authority,  and  jurisdiction  not 
vested  by  this  constitution,  or  by  laws  consistent  therewith,  exclusively  in 
some  other  court  shall  belong  to  the  circuit  courts."  The  Code  of  Civil 
Procedure  (§1),  General  Laws  of  Oregon,  1872  (p.  105),  abolishes  all  forms 
of  action  at  law,  but  not  the  distinction  between  actions  at  law  and  suits  in 
equity.  Code  Civ.  Proc,  §  376;  Gen.  Laws,  p.  189:  "The  enforcement  or 
protection  of  a  private  right,  or  the  prevention  of  or  redress  for  an  injury 
thereto,  shall  be  obtained  by  a  suit  in  equity,  in  all  cases  where  there  is  not 
a  plain,  adequate,  and  complete  remedy  at  law;  and  may  be  obtained  thereby 
in  all  cases  wliere  courts  of  equity  have  been  used  to  exercise  concurrent 
jurisdict'on  with  courts  of  law,  unless  otherwise  specially  provided  in  this 
chapter." 

Rhode  Island. —  The  constitution  (art.  IV.,  §  1)  creates  a  supreme  court. 
§  2:  "The  court  shall  have  such  jurisdiction  as  may  from  time  to  time  be 
granted  by  law.  Chancery  powers  may  be  conferred  on  the  supreme  court,  but 
on  no  other  court  to  any  greater  extent  than  is  now  provided  by  law."  Gen. 
Stats.  1872,  p.  404,  cliap.  181,  §  4:»  "The  supreme  court  sliall  have  exclusive 
cognizance  and  jurisdiction  of  all  suits  and  proceedings  whatsoever  in  ecjuity, 

{m)  A'cijada.  —  Gen.      Stats.      1885,  (n)  Rhode      Island.  —  Pub.      Stats. 

S  3023.  1882,  p.  606,  chap.   192,   §   8. 


479  ABSTRACT    OF    LEGISLATIVE   PROVISIONS.  §  286 

of  chancery,  but  is  partial,  and  to  a  considerable  extent 
fragmentary,  since  the  more  general  clauses  of  the  statutes 
have  naturally  been  confined  or  restricted  in  their  judicial 

with  full  power  to  make  and  enforce  all  orders  and  decrees  therein,  and  to 
issue  all  process  therefor,  according  to  the  course  of  equity." 

Tennessee. —  The  constitution  (art.  VI.,  §  1)  establishes  a  supreme  court, 
and  "  such  circuit,  chancery  and  other  inferior  courts  as  the  legislature  shall 
from  time  to  time  establish."  §  8:  "The  jurisdiction  of  the  chancery  .  .  . 
courts  shall  be  as  now  established  by  law  until  changed  by  the  legislature." 
Comp.  Stats.  1872,  §  4279 :o  "The  chancery  courts  shall  continue  to  have  all 
the  powers,  privileges,  and  jurisdiction  properly  and  rightfully  incident  to  a 
court  of  equity  by  existing  laws."  Oomp.  Stats.  1872,  §  4280 :P  "They  have 
exclusive  original  jurisdiction  in  all  cases  of  an  equitable  nature,  where  the 
debt  or  demand  exceeds  fifty  dollars,  unless  otherwise  provided  by  this  code." 
Other  provisions  give  a  power  to  grant  equitable  relief  in  certain  specified 
cases,  all  of  which,  however,  are  embraced  within  the  foregoing  general 
authority. 

Virginia. —  Code  1860,  chap.  158,  §  5,  p.  667  :a  "The  circuit  court  of  each 
county  shall  have  jurisdiction  in  all  cases  in  chancery  and  all  actions  at  law." 
Certain  local  courts  are  also  established  in  particular  districts  having  the  same 
jurisdiction.  The  high  court  of  errors  and  appeals  is  entirely  an  appellate 
tribunal.  No  change  in  this  jurisdiction  seems  to  be  made  by  subsequent 
statutes. 

^Vest  Virginia. —  Const.,  art.  VI.,  §  6:'  "Circuit  courts  shall  have  original 
and  general  jurisdiction  of  all  matters  at  law  and  of  all  cases  in  equity."  The 
Code  of  1SG8  (chap.  112,  §  I),*  contains  a  provision  identical  with  the  fore- 
going. 

Wisconsin. —  Const.,  art.  VII.,  §  2 :  "  The  judicial  power  of  the  state,  both 
as  to  matters  of  law  and  equity,  shall  be  vested  in  a  supreme  court,  circuit 
courts,"  etc.  §  8 :  Circuit  courts  have  original  jurisdiction  "  in  all  matters 
civil  and  criminal  not  excepted  by  this  constitution  or  prohibited  by  law." 
Gen.  Stats.  1871,  vol.  2,  chap.  116,  §  5,  p.  1303:  Circuit  courts  "  have  original 
jurisdiction  in  all  cases,  both  of  law  and  equity";  and  (§9)  "shall  have 
power  to  issue  writs  of  injunction,  .  .  .  and  all  other  writs,  process, 
.  .  .  according  to  the  common  usage  of  coiirts  of  record  of  common  law  and 
of  equity  jurisdiction."*  Gen.  Stats.  1871,  §  22,  p.  1306:  "  Circuit  courts  shall 
have  original  jurisdiction  of  all  civil  actions."  The  distinction  between  ac- 
tions at  law  and  suits  in  equity  is  abolished,  and  one  "  civil  action  "  is  estab- 
lished for  all  private  rights  and  remedies. 

(o)  Tennessee.— Code  1884,  §  5022.  (t)  W  is  c  o  n  s  t  n.  —  Stats.      1889, 

(P)  Code  1884,  §  5023.  §    2420:      "The   circuit   courts    have 

(«i)  Virginia. —  Code  1887,  §  3058.  the    general    jurisdiction    prescribed 

(«•)  West      Virginia.  —  Art.      VIII.,  by     the     constitution.     .     .     .     They 

f  12.  have   the   power   to   hear   and    deter- 

(«•)  And    the    Code    of    1884,    chap.  mine,    within    their    respective    cir- 

112,  8  2.  cuits,  all  civil  actions  and  proceed- 
ings." 


§  286  EQUITY   JURISPRUDENCE.  480 

interpretation  by  the  enumeration  of  special  powers  con- 
tained in  other  clauses.  In  all  these  states  the  legislation  on 
the  subject  has  been  progressive.  At  an  early  day  the 
equity  jurisdiction  was  either  wholly  withdrawn  from  the 
courts,  or  else  existed  within  extremely  narrow  bounds,  and 
it  has  from  time  to  time  been  enlarged  by  the  legislature. 
For  this  reason  the  judicial  decisions  of  all  these  states 
should  be  carefully  examined  and  compared  with  the  stat- 
utes in  force  at  the  time  when  they  were  rendered ;  otherwise 
their  true  scope  and  effect  may  be  misapprehended.  The 
following  states  are  embraced  in  this  class :  Maine,  Massa- 
chusetts, New  Hampshire,  Pennsylvania.^ 

i  Maine. —  Rev.  Stats.  1871,  chap.  77,  §  2,  p.  581:  The  supreme  judicial 
court  has  jurisdiction  in  law.  §  5,  p.  582 :  "  It  has  jurisdiction  as  a  court 
of  equity  in  the  following  cases:  1.  For  the  redemption  of  estates  mort- 
gaged; 2.  For  relief  from  forfeiture  of  penalties  to  the  state,  and  from  for- 
feitures in  civil  contracts  and  obligations,  and  in  recognizances  in  criminal 
cases ;  3.  To  compel  the  specific  performance  of  written  contracts,  and  to  cancel 
and  compel  the  discharge  of  written  contracts,  whether  under  seal  or  otherwise, 
when  a  full  performance  or  payment  has  been  made  to  the  contracting  party; 
4.  For  relief  in  cases  of  fraud,  trusts,  accident,  or  mistake;  5.  In  cases  of 
nuisance  or  waste;  6.  In  cases  of  partnership,  and  between  the  part  o^vnera 
of  vessels  and  of  other  real  and  personal  property,  for  adjustment  of  their 
interests  in  the  property  and  accoimts  respecting  it;  7.  To  determine  the  con- 
struction of  wills,  and  whether  an  executor  not  expressly  appointed  a  trustee 
becomes  such  from  the  provisions  of  a  will;  and  in  cases  of  doubt,  the  mode 
of  executing  a  trust,  and  the  expediency  of  making  changes  and  investments 
of  property  held  in  trust;  8.  In  cases  where  the  power  is  specially  given  by 
statute;  and  for  discovery  in  the  cases  before  named,  according  to  the  course 
of  chancery  practice;  9.  When  counties,  cities,  towns,  or  school  districts,  for  a 
purpose  not  authorized  by  law,  vote  to  pledge  their  credit,  or  to  raise  money 
by  taxation,  or  to  pay  money  from  their  treasury;  or  for  such  purpose  any 
of  their  officers  or  agents  attempt  to  pay  out  such  money,  the  court  shall 
have  equity  jurisdiction  on  application  of  not  less  than  ten  taxable  inhabitants 
therein."  §  7:  "Writs  of  injunction  may  be  issued  in  cases  of  equity  juris- 
diction, and  when  specially  authorized  by  statute." 

Laws  1873,  chap.  140:  "The  supreme  judicial  court  shall  have  jurisdiction 
in  equity  between  partners  or  part  owners,  to  adjust  all  matters  of  partner- 
tship  between  such  part  owners,  compel  contribution,  and  make  final  decrees." 

Ivaws  1874,  chap.  175,  p.  126:  Chapter  77  of  the  Revised  Statutes  (§5), 
quoted  above,  is  amended  by  adding  the  following  subdivision :  "  10.  And 
Hhal!  have  fully  equity  jurisdiction,  according  to  the  usage  and  practice  of 
courts  of  equity,  in  all  other  cases,  where  there  ie  not  a  plain,  adequate,  and 
complete  remedy  at  law." 


481  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  287 

§  287.  4.  Class  Fourth. —  The  fourth  class  embraces  those 
fitates  in  which,  from  an  abandonment  of  the  ancient  modes 
of  procedure  inherited  from  the  law  of  England,  the  con- 
stitutions and  statutes,  in  their  grants  of  jurisdiction  to  the 

Laws  of  1876  (chap.  101,  p.  74)  is  amended  by  Laws  of  1877  (chap.  158,  p. 
119).  Tlie  same  chapter  77  of  the  Revised  Statutes  (§5)  is  amended 
again,  by  adding  the  following  subdivision :  "  10.  In  suits  for  the  redelivery 
of  goods  or  chattels  taken  or  detained  from  the  owner,  and  secreted  or  with- 
held, so  that  the  same  cannot  be  replieved;  and  in  bills  in  equity  by  a  creditor 
or  creditors  to  reach  and  apply  in  payment  of  a  debt  any  property,  right, 
title,  or  interest,  legal  or  equitable,  of  a  debtor  or  debtors  residing  or  found 
within  this  state,  which  cannot  be  come  at  to  be  attached  or  taken  on  execution 
in  a  suit  at  law  against  such  debtor  or  debtors,  and  which  is  not  exempt  by 
law  from  such  attachment  and  seizure,  and  any  property  or  interest  conveyed 
in  fraud  of  creditors."  Laws  1877,  chap.  197,  p.  143:  The  same  chapter  77 
of  the  Revised  Statutes  (§5)  is  amended  by  adding  to  the  sixth  subdivision 
the  following  words:  "And  in  cases  arising  out  of  the  law  providing  for  the 
application  of  receipts  and  expenditures  on  railroads  by  trustees  in  pos- 
session under  mortgage." 

In  addition  to  the  foregoing  grants  of  power,  various  provisions  of  the  Re- 
vised Statutes  also  give  an  equitable  remedy,  or  permit  the  court  to  inter- 
pose as  a  court  of  equity,  in  certain  other  special  cases,  as  follows:  P.  139, 
§  48,  suits  for  the  redemption  of  landg  sold  for  non-payment  of  taxes;  p.  245, 
I  29,  suits  by  town  officers  to  restrain  county  officials  from  improperly  con- 
structing a  highway  through  the  town;  p.  331,  §  10,  suits  between  general 
and  special  partners;  p.  336,  §  5,  suits  by  owners  of  cargo  against  ship-owners 
for  discovery  and  payment,  in  cases  of  embezzlement,  loss,  or  destruction  of 
goods  by  master  or  seamen;  p.  396,  §  19,  suits  by  a  creditor  or  stockholder 
to  wind  up  an  expired  corporation;  p.  398,  §  31,  suits  to  compel  contribu- 
tion by  stockholders,  and  to  enforce  their  liability  for  the  corporation  debts; 
p.  399,  §§  34,  35,  suits  by  judgment  creditors  against  a  corporation  when  its 
property  cannot  be  reached  by  attachment  or  execution,  or  when  it  has  made 
illegal  dividends;  pp.  410,  411,  §§  40,  46,  suits  by  creditors  against  directors 
and  stockholders  of  a  bank  for  unlawful  acts;  p.  411,  §  47,  suits  by  a  stock- 
holder who  has  paid  debts  of  a  bank,  against  the  directors  and  other  stock- 
holders for  a  contribution;  p.  413,  §  57,  suits  by  official  bank  examiner  to 
«njoin  bank  which  has  made  over-issues,  or  is  unsound;  p.  417,  §  74,  suits 
by  receivers  of  banks  to  recover  unpaid  assessments  from  stockholders,  when 
necessary  to  meet  demands  against  the  bank;  p,  422,  §§  99,  100,  101,  suits  by 
the  trustees  or  by  any  depositor  of  an  insolvent  savings  bank  to  compel  a 
ratable  distribution  of  its  property;  p.  450,  §  10,  suit  by  the  person  entitled 
against  a  railroad  to  compel  payment  of  land  damages  awarded,  when  land 
has  been  taken,  and  to  enjoin  the  railroad  until  they  are  paid;  p.  458, 
§  53,  suits  by  railroads  to  redeem  from  mortgages;  p.  462,  §  70,  in  all  con- 
troversies relating  to  trustees,  mortgages,  and  the  foreclosure  or  redemption 
of  mortgages  of  railroads;  p.  464,  §  77,  suits  to  enforce  awards  made  by 
railroad  commissioners  concerning  controversies  between  connecting  railroad 
lines  and  companies;  p.  492,  §  9,  suits  by  a  married  woman  to  control  and 

Vol.  1  —  31 


§  287  EQUITY   JURISPRUDENCE.  482 

courts,  make  no  distinction  between,  nor  even  any  mention 
of,  either  the  "  law  "  or  ''  equity."  All  these  states,  ex- 
cepting Louisiana  and  Texas,  have  adopted  the  reformed 
American  system  of  procedure.     Their  constitutions  and 

invest  for  her  own  use  the  damages  awarded  to  her  when  her  own  separate 
property  has  been  taken  for  public  uses;  p.  517,  §  63,  all  controversies  be- 
tween co-executors  or  co-administrators,  in  the  same  manner  as  those  between 
copartners;  p.  541,  §§  10,  11,  suits  to  enforce  and  regulate  the  execution  of 
trusts;  p.  565,  §  14,  suits  to  compel  contribution  among  heirs,  devisees,  and 
legatees,  whenever  they  are  liable  to  contribute;  p.  705,  §  13,  suits  for  re- 
demption from  mortgages;  p.  787,  §  6,  suits  to  compel  the  specific  performance 
of  land  contracts,  after  the  vendor  has  died,  against  his  heirs,  devisees,  ad- 
ministrators, or  executors. 

Massachusetts. —  Tlie  following  provisions,  except  where  the  date  of  their 
enactment  is  specially  stated,  are  also  found,  with  some  difference  of  lan- 
guage, in  the  Revised  Statutes  of  1830:  Gen.  Stats.  1873,  p.  558,  chap.  113, 
§  2. a  "  The  court  may  hear  and  determine  in  equity  all  cases  hereinafter 
mentioned,  when  the  parties  have  not  a  plain,  adequate,  and  complete  remedy 
at  the  common  law,  namely:  1.  Suits  for  the  redemption  of  mortgages,  or 
to  foreclose  the  same :  2.  Suits  and  proceedings  for  the  enforcing  and  regulating 
the  execution  of  trusts,  whether  the  trusts  relate  to  real  or  personal  es- 
tate; 3.  Suits  for  the  specific  performance  of  written  contracts,  by  and  against 
either  party  to  the  contract,  and  his  heirs,  devisees,  executors,  administrators, 
and  assigns;  4.  Suits  to  compel  the  redelivery  of  goods  and  chattels  taken 
or  detained  from  the  owner,  and  secreted  or  withheld  so  tliat  the  same  can- 
not be  replevied;  5.  Suits  for  contribution  by  or  between  legatees,  devisees, 
or  heirSj  who  are  liable  for  the  debts  of  a  deceased  testator  or  intestate, 
and  by  or  between  any  other  persons  respectively  liable  for  the  same  debt 
or  demand,  when  there  is  more  than  one  person  liable  at  the  same  time  for 
the  same  contribution;  6.  Other  cases  where  there  are  more  than  two  parties 
having  distinct  rights  or  interests  which  cannot  be  justly  or  definitely  decided 
or  adjusted  in  one  action  at  the  common  law;  7.  Suits  between  joint  tenants, 
tenants  in  common,  and  copartners  and  their  legal  representatives,  with 
authority  to  appoint  receivers  of  rents  and  profits,  and  apportion  and  dis- 
tribute the  same  to  the  discharge  of  encumbrances  and  liens  on  the  estates, 
or  among  co-tenants;  8.  Suits  between  joint  trustees,  co-administrators, 
and  co-executors,  and  their  legal  representatives;  9.  Suits  concerning  waste 
and  nuisance,  whether  relating  to  real  or  personal  estate;  10.  Suits  upon 
accounts,  when  the  nature  of  the  account  is  such  that  it  cannot  be  con- 
venifntiy  and  properly  adjusted  and  settled  in  an  action  at  law;  11.  Bills 
by  creditors  to  reach  and  apply  in  payment  of  a  debt  any  property,  right, 
title,  or  interest,  legal  or  equitable,  of  a  debtor,  within  this  state,  which 
cannot  be  come  at  to  be  attached  or  taken  on  execution  in  a  suit  at  law 
against  such  debtor  (Laws  1851,  chap.  206;  Laws  1858,  chap.  34);  12.  Cases 
of  fraud  and  conveyance  or  transfer  of  real  estate  in  the  nature  of  mortgage 
(Jjjiws   1855,  chap.   104);      13.   Cases  of  accident  or  mistake;      14.   Suits   or 

(a)    Massachusclls.  —  Gen.       Stats.  1882,  chap.   151,   §  2. 


483  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  2ST 

statutes  confer  upon  the  courts  complete  power  and  juris- 
diction to  hear  and  determine  all  civil  causes,  or  to  grant 
all  civil  remedies;  and  they  thus  implicitly  include  a  full 
jurisdiction  in  cases  and  over  remedies  of  an  equitable  char- 

bills  for  discovery,  when  a  discovery  may  be  lawfully  required  according  to  the 
course  of  proceedings  in  equity;  15.  And  shall  have  full  equity  jurisdiction' 
according  to  the  usage  and  practice  of  courts  of  equity  in  all  other  casefj- 
Avhere  there  is  not  a  plain,  adequate,  and  complete  remedy  at  law  (Laws  1857, 
chap.  214)."  By  the  Laws  of  1875  (chap.  235),1»  jurisdiction  is  given  to  enter- 
tain creditors'  suits  by  judgment  creditors  to  reach  property  of  the  debtors 
fraudulenly  transferred  to  or  held  by  others.  Other  statutes  confer  special 
powers  and  remedies  in  particular  cases,  most  of  which,  however,  are  covered 
by  some  one  of  the  foregoing  provisions.  Laws  1877,  chap.  178,  p.  558,  §  l:®- 
"  The  supreme  judicial  court  shall  have  jurisdiction  in  equity  of  all  cases  and', 
matters  of  equity  cognizable  under  the  general  principles  of  equity  jurispru- 
dence; and  in  respect  of  all  such  cases  and  matters  shall  be  a  court  of  general 
equity  jurisdiction."  Laws  1877,  chap.  178,  §  2:  "The  last  paragraph  of 
section  2  of  chapter  113  of  the  General  Statutes,  beginning  with  the  words- 
'And  shall  have,'  is  hereby  repealed;  but  this  repeal  shall  not  affect  any  cause- 
or  proceeding  now  pending."  This  statute  of  1877,  it  will  be  seen,  confers 
a  much  broader  and  more  unlimited  jurisdiction  than  had  been  given  by 
any  previous  legislative  grant.d 

New  Hampshire. —  Gen.  Stats.  1867,  p.  388,  chap.  190,  §  1:  "  Tlie  supreme 
court  shall  have  the  powers  of  a  court  of  equity  in  cases  cognizable  in  such 
courts,  and  may  hear  and  determine,  according  to  the  course  of  equity,  in 
cases  of  charitable  uses,  trusts,  fraud,  accident,  or  mistake;  of  the  affairs  of 
copartners,  joint  tenants  or  owners,  or  tenants  in  common;  of  the  redemp- 
tion and  foreclosure  of  mortgages;  of  the  assignment  of  dower;  of  contribu- 
tion; of  waste  and  nuisance;  of  specific  performance  of  contracts;  of  dis- 
covery, when  discovery  may  be  had  according  to  the  course  of  proceeding  in 
equity;  and  in  all  other  cases  where  there  is  not  a  plain,  adequate,  and  com- 
plete remedy  at  law,  and  such  remedy  may  be  had  by  proceedings  according 
to  the  course  of  equity;  may  grant  writs  of  injunction  whenever  the  same  i&- 
necessary  to  prevent  fraud  or  injustice."  §  2 :  "  When  goods  or  chattels  are 
unlawfully  withheld  from  the  owner,  proceedings  in  equity  may  be  had  for 
a  discovery,  for  a  restoration  ot  the  property,  and  for  such  other  relief  aa 
the  nature  of  the  case  and  justice  may  require."  Section  3  provides  for  a 
creditor's  bill  by  a  judgment  creditor  whose  execution  has  been  returned 
unsatisfied.  Laws  1874,  chap.  97,  p.  340:  This  statute  reorganizes  the  entire 
judicial  system,  changes  the  courts,  and  transfers  all  jurisdiction  to  the 
new  courts;  but  makes  no  alteration  in  the  existing  jurisdiction  itself. 

Pe?insylvania. —  Prior  to  the  legislation  hereinafter  mentioned,  the  courts- 
of  Pennsylvania  possessed  no  equity  jurisdiction  whatever.     To  prevent  the 

Cb)    Massachusetts.  —  Gen.       Stats.  1883,    similar   jurisdiction    in   equity 

1882,  chap.   151,   §  3.  is  conferred  upon  the  superior  courts. 

(c)  Laws  1882,  chap.  151,  §  4.  Section   14   of  the  act   permits   equi« 

(d)  By  chapter  223  of  the  Laws  of  table  defenses  in  actions  at  law. 


§  287  EQUITY   JURISPRUDENCE.  484 

acter,  as  well  as  those  of  a  legal  nature.  From  consider- 
ations of  convenience,  and  because  the  same  principle  of 
administration  is  noiu  common  to  the  whole  group,  I  have 
added  to  this  class  all  those  other  states  which  have  adopted 

•absolute  failure  of  justice,  which  would  otherwise  have  followed,  they  had 
invented  a  curious  system,  by  means  of  which  some  equitable  principles  and 
rules  were  enforced,  and  some  equitable  reliefs  were  given,  through  the 
ordinary  common-law  forms  of  action.  For  example,  in  the  action  of  ejectment, 
«in  equitable  right  or  title  was  permitted  to  be  set  up  by  the  defendant, 
«nd  then  after  the  verdict  of  the  jury  the  equities  of  the  parties  were  worked 
out  by  an  alternative  or  conditional  judgment.  This  whole  system  was, 
of  course,  cumbrous,  and  could  only  be  applied  within  narrow  limits.  The 
•change  made  by  the  legislature  has  been  gradual,  and  the  final  steps  were  quite 
recent,  of  which  the  following  is  a  summary:  Const,  (as  amended  in  1838), 
art.  v.,  §  6 :  "  The  suprenie  court  and  the  several  courts  of  common  pleas 
«haH,  besides  the  powers  heretofore  usually  exercised  by  them,  have  the  power 
of  a  court  of  chancery,  so  far  as  relates  to  the  perpetuation  of  testimony, 
'the  obtaining  of  evidence  from  places  not  within  the  state,  and  the  cases  of  the 
ipersons  and  estates  of  those  who  are  non  compos  mentis;  and  the  legislature 
©hall  vest  in  the  said  courts  such  other  powers  to  grant  relief  in  equity 
as  shall  be  found  necessary;  and  may  from  time  to  time  enlarge  or  diminish 
those  powers,  or  vest  them  in  such  other  courts  as  they  shall  judge  proper 
!for  the  due  administration  of  justice."  Const.  1873,  art.  V.,  §  1 :  A  supreme 
•court  and  courts  of  common  pleas  are  established.  §  3:  The  jurisdiction  of 
the  supreme  court  is  appellate,  except  that  "  the  judges  shall  have  original 
jurisdiction  in  cases  of  injunction  where  a  corporation  is  defendant."  §  20: 
■**  The  several  courts  of  common  pleas,  besides  the  powers  herein  conferred, 
'Shall  have  and  exercise,  within  their  respective  districts,  subject  to  such 
■changes  as  may  be  made  by  law,  such  chancery  powers  as  are  now  vested  by 
law  in  the  several  courts  of  common  pleas  of  this  commonwealth,  or  as  may 
hereafter  be  conferred  on  them  by  law." 

Brightly's  edition  of  Purdon's  Digest  (1700-1872),  vol.  1,  p.  589  (Act  of 
Jiuie  16,  183G,  §  1)  :«  "The  supreme  court  and  the  several  courts  of  com- 
mon pleas  shall  have  the  jurisdiction  and  power  of  a  court  of  chancery,  so  far 
as  relates  to, —  1.  The  perpetuation  of  testimony;  2.  The  obtaining  of  evi- 
<lence  from  places  not  within  the  state;  3.  Tlie  case  of  the  persons  and  es- 
tates of  those  who  are  non  compos  mentis;  4.  Tlie  control,  removal,  and 
discharge  of  trustees,  and  the  appointment  of  trustees  and  the  settlement 
of  their  accounts;  5.  Tlie  supervision  and  control  of  all  corporations  other 
than  those  of  a  municipal  character,  and  unincorporated  societies  and  as- 
«ociations  and  partnerships;  6.  The  care  of  trust  moneys  and  property, 
and  other  moneys  and  property  made  liable  to  the  control  of  the  said 
courts;  and  in  such  other  cases  as  the  said  courts  have  heretofore  pos- 
•essed  such  jurisdiction  and  powers  under  the  constitution  and  laws  of 
this  commonwealth."  §  2:  "The  supreme  court  when  sitting  in  bank  in 
the  city   of   IMiiladelphia    (extended  by  act  of  July  26,   1842,   to  the  judges 

(<■)  Ed.  of  1883,  vol.  1,  p.  OS!). 


485  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  287 

the  reformed  procedure,  but  which  have  already  been  men- 
tioned either  in  the  first  or  the  second  of  the  foregoing 
classes.  As  a  matter  of  fact,  in  all  the  commonwealths- 
where  the  reformed  procedure  prevails,  there  is  substan- 

thereof  sitting  at  nisi  prius  in  said  city ) ,  and  the  court  of  common  pleas  for 
the  said  city  and  county  shall,  besides  the  powers  and  jurisdiction  aforesaid^ 
have  the  powers  and  jurisdiction  of  courts  of  chancery  so  far  as  relate* 
to, —  1.  The  supervision  and  control  of  partnerships  and  corporations  other 
than  municipal ;  2.  The  care  of  trust  moneys  and  property  and  other  moneys- 
and  property  made  liable  to  the  control  of  the  said  courts;  3.  The  discovery 
of  facts  made  material  to  the  just  determination  of  issues  and  other  ques- 
tions arising  or  depending  in  said  courts;  4.  The  determination  of  rights  to 
property  or  money  claimed  by  two  or  more  persons,  in  the  hands  or  pos- 
session of  a  person  claiming  no  right  or  property  therein;  5.  The  prevention' 
or  restraint  of  the  commission  or  continuance  of  acts  contrary  to  law  and 
prejudicial  to  the  interests  of  the  community  or  the  rights  of  individuals;. 
6.  The  affording  specific  relief  when  a  recovery  in  damages  would  be  an  in- 
adequate remedy."  Act  of  June  13,  1840:  "The  equity  jurisdiction  of  the  su- 
preme court  within  the  city  of  Philadelphia  and  of  the  court  of  common  pleas 
for  said  city  shall  be  extended  to  all  cases  arising  in  said  city  over  which 
courts  of  chancery  entertain  jurisdiction  on  the  grounds  of  fraud,  mistake^ 
accident,  or  account."  By  the  act  cf  April  11,  1845,  it  was  declared  that  thi» 
provision  "  should  be  construed  to  include  all  cases  of  fraud,  actual  or  con- 
structive." Act  of  October  13,  1840:  '*  The  supreme  court,  district  courts,  and 
courts  of  common  pleas  within  this  commonwealth  shall  have  all  the  powers 
and  jurisdiction  of  courts  of  chancery  in  settling  partnership  accounts  and  sucb 
other  accounts  and  claims  as  by  the  common  law  and  usages  of  this  common- 
wealth have  hitherto  been  settled  by  the  action  of  '  account  render,"  and  plain- 
tiff can  sue  either  in  equity  or  at  law."  Act  of  April  10,  1848:  "  The  supreme 
court  and  court  of  common  pleas  in  Philadelphia  shall  have  the  jurisdiction  of 
courts  of  chancery  in  all  suits  for  the  discovery  of  facts."  Act  of  April  25, 
1850:  The  powers  conferred  (by  act  of  June  16,  1836,  above),  concerning  th» 
perpetuation  of  testimony,  are  extended  to  all  cases  of  perpetuating  lost  rec- 
ords. Act  of  April  8,  1852:  The  jurisdiction  conferred  by  the  foregoing  acts 
upon  the  supreme  court  in  and  for  the  city  of  Philadelphia  is  extended  through- 
out the  entire  state;  "  provided  that  said  court  shall  not  have  original  jurisdic- 
tion by  virtue  of  this  act  to  supervise  any  partnerships  or  unincorporated  asso- 
ciations or  societies."  Act  of  P'ebruary  14,  1857:  The  jurisdiction  vested  by  th& 
foregoing  acts  in  the  district  court  or  the  court  of  common  pleas  in  and  for 
Philadelphia  is  extended  to  all  the  courts  of  common  pleas,  throughout  the 
state.  In  addition  to  the  foregoing  somewhat  general  grants  of  authority,  other 
statutes  have  from  time  to  time  given  jurisdiction  or  power  to  grant  special  re- 
lief under  various  particular  circumstances,  the  most  important  of  which  are 
the  following:  Act  of  June  16,  1836:  Bills  for  discovery  in  favor  of  judgment 
creditors  are  allowed.  Act  of  March  17j  1845:  The  supreme  court  for  the 
eastern  district  of  the  state,  and  the  court  of  common  pleas  for  Philadelphia, 
have  jurisdiction  of  all  cases  of  dower  and  of  partition  within  Philadelphia; 


§  287  EQUITY   JURISPRUDENCE.  486 

tially  the  same  amount  of  equitable  jurisdiction,  and  there 
-are  also  the  same  limitations  upon  the  extent  and  exercise 
of  that  jurisdiction  growing  out  of  the  radical  change  in 
the  modes  of  administering  it  effected  by  the  reformatory 
legislation.  The  fourth  class  is  thus  composed  of  the  fol- 
lowing states :  Arkansas,  Indiana,  Kansas,  Louisiana, 
Minnesota,  Missouri,  Ohio,  South  Carolina,  Texas,  and 
those  which  have  already  been  mentioned :  California,  Con- 
necticut, Iowa,  Kentucky,  Nebraska,  Nevada,  New  York, 
North  Carolina,  Oregon,  Wisconsin.  To  these  may  bo 
added  several  of  the  territories.^ 

^nd  by  act  of  April  15,  1858,  the  same  courts  have  a  like  jurisdiction  in  casea 
of  disputed  boundary  within  the  same  city.  Act  of  April  25,  1850:  Suits  in 
equity  for  an  accounting  between  co-owners  of  mines  or  minerals  are  allowed. 
Act  of  April  11,  1862:  The  supreme  court  has  all  the  powers  of  chancery  in 
-all  cases  of  mortgages  given  by  corporations.  Statute  of  March  15,  1873,  p. 
301 :  The  act  of  April  5,  1860,  abridging  the  equity  jurisdiction  in  Phila- 
delphia, is  repealed,  and  the  equity  jurisdiction  of  the  district  court  in  Phila- 
delphia is  restored  as  it  was  before  said  act.  Statutes  of  1876,  May  5,  p.  123: 
All  courts  of  common  pleas  have  all  the  powers  of  a  court  of  chancery  in  all 
<;ases  of  or  for  the  enforcing  of  mortgages  on  the  property  or  franchises  of  any 
railroad,  canal,  or  navigation  corporation  situated  within  the  state.  Statutes 
of  1S76,  May  8,  p.  134:  Equity  jurisdiction  in  partition  is  enlarged  so  that 
any  and  every  proper  relief  may  be  given  by  the  decree  of  the  court. 

1  Arkansas. —  Const.  1868,  art.  VII.,  §  1 :  A  supreme  court  and  circuit 
courts  are  created.  §  4 :  "  The  supreme  court  shall  have  general  supervision 
and  control  over  all  inferior  courts  of  law  and  equity,"  §  5 :  "  The  inferior 
■courts  of  the  state  as  now  constituted  by  law  shall  remain  witli  the  same 
jurisdiction  as  they  now  possess,"  subject  to  the  power  of  the  legislature  to 
alter.  Dig.  of  Stats.  1874,  §  1182 :»  Circuit  courts  have  original  juris- 
diction in  all  civil  actions.  Dig.  1874,  §  1183:b  "They  shall  have  exclusive 
original  jurisdiction  in  each  county  in  which  they  may  be  held,  except  in  the 
county  of  Pulaski,  as  courts  of  equity,  in  all  cases  where  adequate  relief  can- 
not be  had  by  the  ordinary  course  of  proceedings  at  law."  Dig.  1874,  §§  1208, 
1209  :c  A  separate  chancery  court  is  established  in  the  county  of  Pulaski, 
which  has  jurisdiction  of  all  equity  cases  arising  in  that  county.  Dig.  1874, 
,p.  798,  §  4450:d  All  forms  of  action  are  abolished.  Dig.  1874,  §  4451  :e 
There  shall  be  one  form  of  action  for  the  maintenance  of  all  private  rights 
and  the  granting  of  all  private  remedies,  called  the  civil  action.  Dig.  1874, 
§  4453:'  The  proceedings  in  civil  actions  may  l>e  either  at  law  or  in  equity. 
Dig.   1874,  §  4454  :K     The  civil  action  "may   be  by  equitable  proceedings  in 

fn)  Arkansas.— m^.  of  Stats.  1884,            (d)  Dig.    1884,   §  4914. 

i   1357.  (e)J)ig.    1SS4.    §    4915. 

(«»)  Dig.   1884,   §    1358.  («)  Dig.   1884,   §   4917. 

(c)  Dig.   1881,  §§   1380,  1381.  (K)  Dig.   1884,  §  4918. 


487  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  288 

§  288.  Conclusions. —  Although  it  is  apparent  from  tho 
foregoing  summary  that  there  is  a  very  general  agreement 
with  respect  to  the  amount  of  equity  jurisdiction  conferred 
upon  the  courts  by  this  fundamental  legislation  of  the  vari- 

all  cases  where  courts  of  equity,  before  the  adoption  of  this  statute,  had  juris- 
diction, and  must  be  in  all  cases  where  such  jurisdiction  was  exclusive."    Thia 
provision  is  substantially  the  same  as  the  corresponding  one  in  Iowa,  Kentucky, 
and  Oregon. 
Ii 

Connecticut.  —  In  addition  to  the  citations  given  ante,  in  not  'describing  the 
second  class,  the  recent  Practice  Act  of  1879  (Pub.  Acts  1879,  p.  432)1  contains 
the  following  provisions:  §  1:  "There  shall  be  hereafter  but  one  form  of 
civil  action."  §  6:  "All  courts  which  are  vested  with  jurisdiction  both  at 
law  and  in  equity  may  hereafter,  to  the  full  extent  of  their  respective  juris- 
dictions, administer  legal  and  equitable  rights,  and  apply  legal  and  equitable 
remedies,  in  favor  of  either  party,  in  one  and  the  same  suit;  so  that  legal  and 
equitable  rights  of  the  parties  may  be  enforced  and  protected  in  one  action; 
provided,  that  wherever  there  is  any  variance  between  the  rules  of  equity  and 
the  rules  of  the  common  law  in  reference  to  the  same  matter,  the  rules  of 
equity  shall  prevail." 

The  other  states  included  in  this  fourth  class  because  they  have  also  adopted 
the  reformed  system  of  procedure  are  described  ante,  in  notes  to  the  first  and 
second  classes. 

Indiana. —  Const.,  art.  VII.,  §  8:  "Circuit  courts  shall  have  such  civil 
and  criminal  jurisdiction  as  may  be  prescribed  by  law."  §  20:  Commis- 
sioners must  be  appointed  to  simplify  the  practice.  "  They  shall  provide  for 
abolisliing  the  forms  of  actions  at  law  now  in  use,  and  that  justice  shall  be 
administered  in  a  uniform  mode  of  pleading,  without  distinction  between 
law  and  equity."  Gavin  and  Herd's  Ind.  Stats.,  vol.  2,  p.  7,  chap.  14: 
"  Circuit  courts  shall  have  jurisdiction  of  all  kinds  of  civil  actions."  "  Such 
courts  shall  have  power  to  make  all  proper  judgments,  sentences,  decrees, 
orders,  and  injunctions,  and  to  issue  all  processes,  and  to  do  such  other  acts 
as  may  be  proper  to  carry  into  effect  the  same,  in  conformity  with  the  con- 
stitution and  laws  of  this  state."J 

(1»)  Colorado.  —  Const.,  art.  VI.,  dress  or  prevention  of  private  wrongs, 
f  11:  "The  district  courts  shall  which  shall  be  the  same  at  law  and 
have  original  jurisdiction  of  all  in  equity,  and  which  shall  be  de- 
causes,  both  at  law  and  in  equity."  nominated  a  civil  action." 
Code  Proc,  §  1:  "The  distinction  ii)  Connecticut. —  Gen.  Stats.  1888, 
between  actions  at  law  and  suits  in  §§  872,  877. 

equity,  and  the  distinct  forms  of  ac-  ii)  Indiana.  —  Rev.       Stats.       18R8, 

tion,    and    suits    heretofore    existing  §   1314;    Stats.   1881,  p.   102:      "  Cir- 

are  abolished,  and  there  shall   be  in  cuit  courts  shall  have  original  exclu 

this  state  but  one  form   of  civil  ac-  sive  jurisdiction  in  all  cases  at  law 

tion    for   the   enforcement   or   protec-  and    in     equity    whatsoever,     .     .     . 

tion    of   private    rights,    and    the   re-  except  where  exclusive  or  concurrent 


§  288  EQUITY   JURISPRUDENCE.  488 

ous  states,  since  the  whole  power  belonging  to  a  court  of 
chancery  seems  to  be  given  either  expressly  or  impliedly  in 
all  the  commonwealths  with  a  few  exceptions,  yet  practi- 
cally such  a  complete  uniformity  by  no  means  exists.    The 

Kansas. —  Const.,  art.  III.,  §  6:  "District  courts  shall  have  such  juris- 
diction as  may  be  provided  by  law;  "  that  of  the  supreme  court  is  entirely 
appellate.  Gen.  Stats.  1868,  p.  304,  chap.  28,  §  1 :  District  courts  "  shall 
have  a  general  original  jurisdiction  of  all  matters,  civil  and  criminal,  not 
otherwise  provided  by  law." 

Minnesota.— Stata.  at  Large  of  1873,  p.  723,  §  17:  "District  courts  shall 
have  original  jurisdiction  of  all  civil  actions."  §  18:  "The  district  courts 
have  original  jurisdiction  in  equity,  and  all  suits  or  proceedings  instituted 
for  equitable  relief  are  to  be  commenced,  prosecuted,  and  conducted  to  a 
final  decision  and  judgment  by  the  like  process,  pleadings,  trial,  and  pro- 
ceedings as  in  civil  actions,  and  shall  be  called  civil  actions."  Stats.  1866, 
chap.  64,  tit.  I. 

Missouri. —  Const.,  art.  VI.,  §  13 :  Circuit  courts  "  shall  have  exclusive 
original  jurisdiction  in  all  civil  cases  which  shall  not  be  cognizable  before 
justices  of  the  peace."  Wagner's  Stats.  1870,  p.  431,  §  2:  "Circuit  courta 
shall  have  .  .  .  exclusive  original  jurisdiction  in  all  civil  cases  which 
shall  not  be  cognizable  before  county  courts  and  justices  of  the  peace." 

k,  1. 

Ohio. —  Const.,  art.  XIV.,  §  3 :  Courts  of  common  pleas  are  the  tribunals 
of  original  general  jurisdiction  throughout  the  state;  and  (§  4)  they  have 
"  such  jurisdiction  as  shall  be  conferred  by  law."  There  is  also  a  superior 
court  of  the  city  of  Cincinnati  possessing  the  same  jurisdiction  within  certain 
territorial  limits.  Swan  and  Critchfield's  Rev.  Stats.  1870,  p.  386,  chap.  32, 
§  33:™  Courts  of  common  pleas  "shall  have  original  jurisdiction  in  all 
civil  cases  where  the  sum  or  matter  in  dispute  exceeds  the  exclusive  original 
jurisdiction  of  justices  of  the  peace."  A  like  power  is  given  to  the  superior 
court  of  Cincinnati  within  its  territorial  limits. 

South  Carolina. —  The  constitution  of  1868  provides  for  an  appellate  court 
and  lower  courts  of  original  jurisdiction;  and  that  the  distinction  between 
suits  in  equity  and  actions  at  law  shall  be  abolished.  Prior  to  this  re- 
vision  of   the   constitution,   law    and  equity   had   been   administered   by   dis- 

jurisdi'^tion   is   or   may   be   conferred  (i)  North  Dakota. —  Const.,    §    103 : 

by  law  upon   justices  of   the  peace."  "  The  district  court  shall  have  orig- 

SPc'tion  287  of  tlie  text  is  cited  in  inal  jurisdiction,  except  as  otherwise 

Blair  v.  Smith,  114  Ind.  114,  15  N.  E.  provided   in  this  constitution,  of  all 

817.  causes,  both  at  law  and  equity."     By 

<.^)  Montana.  —  Const.,    art.    VIII.,  section    111,    provision    is    made    for 

{    11:      "The    district    courts    shall  conferring     general     jurisdiction     on 

have  original  jurisdiction  in  all  cases  certain  county   (probate)   courts, 

at     law     and     in     equity."        §     28:  (>»)  0/tio.  —  Smith      &      Benedict's 

"  There  shall  be  but  one  form  of  civil  Rev.  Stats.    1890,   p.    124,   §  456. 
action,   and   law   and   equity  may   be 
adminiHtercd   in  the  same  action." 


489  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  288 

real  condition  of  the  jurisdiction  as  it  is  administered  in 
the  different  groups  of  states  requires  a  brief  statement  of 
the  judicial  interpretation  which  has  been  given  to  the  con- 
stitutional and  statutory  grants  of  power,  either  taken  sep- 
arately or  arranged  according  to  their  respective  types. 
This  judicial  interpretation  is  described  in  the  following 
section. 

tinct  tribunals.      In    1870   a   code   of   procedure   was   adopted   similar   in   all 
icspects  to  the  like  code  which  had   prevailed  in   New  York  since   1S49,  by 
which   the  legal  and   equitable  jurisdictions  are  combined   in  the   same   pro- 
ceedings. 
n 

In  two  other  states  of  this  class  all  distinction  between  legal  and  equi- 
table actions  has  been  abandoned,  but  the  peculiar  methods  of  the  reformed 
procedure  have  not  been  adopted.  The  law  of  Louisiana,  both  with  respect 
to  substantive  or  primary  rights  and  to  remedies,  is  based  upon  the  "  civil 
law "  as  that  had  been  modified  and  reconstructed  by  the  French  codes. 
The  substantive  law  of  Texas  has  also  a  large  clement  of  the  "  civil  law," 
but  recognizes  the  common  law  and  the  principles  of  equity.  Its  remedial 
procedure  provides  one  form  of  action  for  all  kinds  of  relief,  but  does  not 
copy  either  the  common-law  or  the  chancery  methods.  In  each  of  these  state* 
many  of  the  principles,  doctrines,  and  remedies  of  equity  constitute  a  part 
of  the  jurisprudence,  for  no  enlightened  system  could  be  without  them. 

Texas. —  Const.  I8G9,  art.  V.,  §  3 :  The  supreme  court  has  only  an  ap- 
pellate jurisdiction.  §  7 :  "  District  courts  have  original  jurisdiction  of 
all  suits,  without  regard  to  any  distinction  between  law  and  equity,  when 
the  value  of  the  matter  in  controversy  is  one  hundred  dollars  or  more." 

o,  p. 

(n)  South  Dakota. —  Const.,  art.  V.,  (o)  Washington. —  Const.,   art.    IV., 

§  14:     "The  circuit  courts  shall  have  §  6:     "The  superior  court  shall  have 

original    jurisdiction    of    all    actions  original   jurisdiction   in   all   cases   in 

and    causes,    both    at    law    and    in  equity,"   and  in  many  cases  at   law. 

equity."    General  jurisdiction  maj'  be  (p)  Wyoming.  —  Const.,      art.      V., 

conferred  by  statute  on  county   (pro-  §  10:     "The  district  court  shall  have 

bate)    courts.  original    jurisdiction    of    all    causes, 

both  at  law  and  in  equity." 


§  2S9  EQUITY   JURISPRUDENCB.  490 


SECTION  n. 

THE  JUEISDICTION  AS   ESTABLISHED  BY  JUDICIAL  INTERPRETA- 
TION. 

ANALYSIS. 

§  289.  The  questions  to  be  examined  stated. 

§  290.  Diversity  of  statutory  interpretation  in  diflferent  states. 
'^i  291-298.  United  States  courts,  equity  jurisdiction  of. 

§  292.  First  principle:      Uniformity  of  jurisdiction.  ^ 

§  293.  Second  principle:     Identity  of  jurisdiction. 

§  294.  Third  principle:     Extent  of  the  jurisdiction. 

§  295.  Fourth  principle:     Inadequacy  of  legal  remediea. 
85  296,  297.  Illustrations. 

§  297.  Ditto:  effect  of  state  laws  on  the  subject-matter  of  the  jurisdiction. 

§  298.  Territorial  limitations  on  the  jurisdiction. 
{§  299-341.  States  in  which  only  a  special  and  partial  jurisdiction  has  been 

given  by  statute. 
|§  299-310.  New  Hampshire. 
§§  311-321.  Massachusetts. 
§§  322-337.  Maine. 
§§  338-341.  Pennsylvania. 
i§  342-352.  The  other  states  in  which  a  general  jurisdiction  has  been  given. 

§  342.  What  states  are  included  in  this  division. 

§  343.  Questions  to  be  examined  stated. 

§  344.  Interpretation  of  statute   limiting  the  jurisdiction  to  cases  for 
which  the  legal  remedy  is  inadequate. 

§  345.  General  extent  of  the  statutory  jurisdiction;  the  states  arranged 
in  the  foot-note. 
5§  346-352.  How  far  this  equity  jurisdiction  extends  to  the  administration  of 
decedents'  estates. 

§  347.  Probate  courts,  jurisdiction  and  powers  of. 

§  348.  Class   first:      The  ordinary   equity  jurisdiction  over  administra- 
tions expressly  abolished. 

§  349.  Class  second:     Such  jurisdiction  practically  abrogated  or  obsolete. 

§  350.  Class  third:      Such  jurisdiction  still  existing  and  actually  con- 
current. 
§S  351,352.  Special   subjects  of  equity  jurisdiction  connected  with  or  grow- 
ing out  of  administrations. 
§S  353-358.  States  wliicli  have  adopted  the  reformed  system  of  procedure. 

§  354.  General  effect  of  this  procedure  on  the  equity  jurisdiction. 
{§  355-358.  Its  particular  effects  upon  equity. 

i  356.  On  certain  equitable  interests  and  rights. 

I  357.  On  certain  etiuitable  remedies. 

§  358.  On  the  doctrine  as  to  inadeejuacy  of  legal  remedies. 

§  289.    Questions  Stated. —  Having   collected   the   legisla- 
tive grants  of  equitable  jurisdiction,  I  sliall  now,  for  the 


491  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  290 

purpose  of  arriving  at  a  practical  result,  describe  in  a  very 
brief  and  condensed  manner  the  judicial  interpretation 
which  has  been  given  to  them.  It  will  not  be  necessary  to 
examine  each  of  them  separately;  they  may,  with  a  very  few 
e?^ceptions,  be  conveniently  grouped  and  discussed  accord- 
ing to  three  or  four  prevailing  types.  It  was  remarked  at 
the  close  of  the  last  section  that  while  there  appeared  to  be 
a  very  general  agreement  on  the  amount  of  equitable  ju- 
risdiction conferred  by  the  constitutions  and  statutes,  yet 
practically  such  a  complete  uniformity  does  not  exist.  This 
actual  condition  results  from  several  causes. 

§  290.  Different  Theories  of  Interpretation. —  In  the  first 
place,  a  marked  diversity  will  be  found  in  the  fundamental 
motives  and  theory  of  the  judicial  interpretation  put  upon 
these  legislative  provisions  by  the  courts  of  different  states. 
In  some  of  them  a  strong  tendency  has  been  shown  to  lay 
much  stress  upon  the  limiting  clauses  contained  in  the  stat- 
utory grants  of  authority,  and  to  give  a  broad  meaning  and 
■controlling  operation  to  such  clauses  as  those  which  restrict 
the  equitable  jurisdiction  to  cases  "  where  there  is  no  plain, 
adequate,  and  complete  remedy  at  law."  In  others,  the 
tendency  has  been  towards  a  more  liberal  construction;  to 
hold  that  these  and  similar  clauses  are  simply  declaratory 
of  a  familiar  principle  embodied  in  the  general  theory  of 
equity  jurisdiction,  and  add  no  restriction  whatever  to  the 
extent  of  jurisdiction  which  would  have  been  conferred  with- 
out their  presence;  in  short,  that  the}^  merely  state  a  limi- 
tation which  is  necessarily  involved  in  the  very  conception 
of  the  equitable  jurisdiction.  In  the  second  place,  the  ap- 
parent uniformity  in  the  jurisdiction  created  by  these  gen- 
eral provisions  has  been  greatly  interfered  with,  and  even 
destroyed,  by  the  different  systems  of  legislation  adopted  by 
various  states  with  reference  to  many  important  branches 
-of  the  municipal  law,  which  originally,  and  prior  to  any 
•statutory  interposition,  formed  a  part  of  the  equity  juris- 
prudence. In  many,  and  perhaps  most,  of  the  states,  sub- 
jects which  fell  within  the  domain  of  equity,  and  which  were 


§    291  EQUITY   JURISPRUDENCE.  492' 

governed  by  equitable  doctrines  as  administered  by  the 
court  of  chancery,  have  been  wholly  subjected  to  a  statu- 
tory regulation,  and  committed  to  special  tribunals,  such  as 
the  courts  of  probate,  so  that  the  interference  of  equity  is 
no  longer  necessary,  even  if  it  is  possible.  Other  depart- 
ments of  the  municipal  law  —  as,  for  example,  trusts  and 
married  women's  property  —  have  been  modified  by  legis- 
lation, so  that  the  material  upon  which  the  equity  jurisdic- 
tion acted  has  been  altered,  limited,  or  perhaps  enlarged. 
Some  of  these  changes  have  already  been  described.  This 
same  method  of  modifying  the  equitable  jurisdiction  has 
even  been  carried  out  to  a  much  greater  extent.  In  several 
of  the  states,  the  municipal  law  has  been,  either  wholly  or 
in  large  part,  reduced  to  a  codified  form,  and  the  doctrines 
and  rules,  both  of  law  and  equity,  have  thus  been  combined 
into  one  statutory  system;  or  at  least,  the  division  walls 
between  them  have,  to  a  considerable  extent,  been  broken 
down.  From  these  facts,  the  conclusion  is  evident,  thai  in 
order  to  ascertain  the  actual  jurisdiction  of  equity  as  it  now 
exists  in  the  different  states,  an  examination  is  requisite 
both  of  the  judicial  decisions  interpreting  its  fundamental 
grants  of  power,  and  of  the  statutes  which  have  modified 
the  subject-matter  upon  which  it  acts.  In  the  brief  ex- 
amination of  the  judicial  construction  which  follows,  I  shall 
consider  first  and  separately  the  United  States,  and  shall 
then  take  up  the  several  states,  arranged  in  a  few  groups. 

§  291.  The  United  States — The  constitution  of  the  United 
States  recognizes  equity  as  a  part  of  the  national  juris- 
prudence inherited  from  England  at  the  time  of  the  Revolu- 
tion, and  the  equitable  jurisdiction  as  a  part  of  the  judicial 
powers  conferred  upon  the  national  tribunals.  The  statutes 
of  Congress  have,  as  is  seen  by  the  extracts  given  in  the 
preceding  section,  acted  upon  this  constitutional  provision; 
and  have,  in  broad  terms,  intrusted  the  exercise  of  this 
jurisdiction  to  the  courts  of  original  jurisdiction,  wliich  arc 
established  throughout  the  states,  and  to  the  supreme  coui't 
created  by  the  constitution  as  the  appellate  tribunal  of  last 


493  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  292 

resort.  In  giving  a  judicial  interpretation  to  these  consti- 
tutional and  statutory  enactments,  the  national  courts  have, 
by  numerous  decisions,  settled  the  following  principles, 
which  may  justly  be  regarded  as  the  foundations  of  the 
equitable  powers  possessed  by  the  national  judiciary. 

§  292.  First  Principle :  Uniformity. —  The  equitable  juris- 
diction of  the  national  courts,  being  derived  wholly  from  the 
United  States  constitution  and  statutes,  exists  uniformly 
and  to  its  full  extent  throughout  the  entire  Union,  inde- 
pendent of  and  unaffected  by  any  state  laws,  or  any  peculiar 
system  of  jurisprudence  and  legislation  adopted  by  indi- 
vidual states.  It  is  the  same  in  Louisiana  with  its  civil-law 
code,  in  California  with  its  code  combining  legal  and  equi- 
table doctrines,  and  in  New  Jersey,  which  has  preserved  the 
ancient  English  system  of  common  law  and  equity  almost 
unaffected  by  modern  legal  reform.  Whatever  may  be  the 
municipal  law  of  any  particular  state,  either  in  its  sub- 
stance or  its  form,  the  United  States  courts  in  that  state 
preserve  their  equitable  jurisdiction,  and  administer  the 
equitable  jurisprudence  unchanged  by  such  local  legislation. 
It  follows,  as  a  necessary  consequence  from  this  principle, 
that  the  reformed  system  of  procedure  now  prevailing  in 
many  states  and  territories,  whereby  all  distinction  between 
suits  in  equity  and  at  law  is  abolished,  and  all  rights  are 
maintained  and  all  reliefs  procured  by  means  of  one  judicial 
proceeding,  called  the  ''  civil  action,"  has  not  in  the  least 
affected  either  the  doctrines  of  equity  jurisprudence  ad- 
ministered, nor  the  extent  and  modes  of  equity  jurisdiction 
exercised,  by  the  national  courts  situated  and  acting  within 
the  same  commonwealth.^  ° 

1  This  result  of  tho  principle  stated  in  the  text  is  recognized  and  followed 
by  the  most  recent  legislation  of  Congress  upon  the  subject.  U.  S.  Rev. 
Stats.,  §  914  (Laws  of  1872,  chap.  255,  §  5,  17  Stats,  at  Large,  p.  197),  pro- 
vides that  practice,  pleading,  forms,  and  modes  of  proceeding  in  civil  causes, 

(a)  In  further  support  of  the  prin-  Story,    J.;    Russell    v.    Southard,    12 

«iple  of  this  and  the  next  following  How.    148,    13   L.   ed.   931;    Neves   v. 

paragraph,   see   Boyle   v.    Zacharie   &  Scott,   13   How.   270,    14   L.   ed.    140; 

Turner,  6  Pet.  648,  8  L.  ed.  532,  by  Pennsylvania  v.  Wheeling  Bridge  Co., 


293 


EQUITY   JURISPRUDENCE. 


494 


§  293.  Second  Principle :  Identity. —  The  second  prin- 
ciple is  a  corollary  of  the  first.  The  equitable  jurisdiction 
is  the  same  with  respect  to  its  nature  and  extent  in  all  the 
states,  and  is  wholly  unmodified  and  unabridged  by  state 

other  than  m  equity  or  in  admiralty,  shall  conform  as  near  as  may  be 
to  the  forms,  pleading,  etc.,  existing  at  the  time  in  like  causes  in  the  courts 
of  record  of  the  state  within  which  the  United  States  court  is  held.  This 
provision  preserves  the  equity  methods  unchanged  by  the  state  laws.  The 
following  cases  maintain  the  doctrine  formulated  in  the  text:  Bodley  v. 
Taylor,  5  Cranch,  191,  221,  222;  Livingston  v.  Story,  9  Pet.  632  (equity 
jurisdiction  in  Louisiana)  ;  Clark  v.  Smith,  13  Pet.  195,  203;  Watkins  v.  Hol- 
man,  16  Pet.  25,  26,  58,  59;  Bennett  v.  Butterworth,  11  How.  669,  674,  675; 
Stinson  v.  Dousman,  20  How.  461,  464;  Greer  v.  Mezes,  24  How.  268,  277^. 
per  Grier,  J.;  Lessee  of  Smith  v.  McCann,  24  How.  398,  403;  Barber  v. 
Barber,  21  How.  582,  591,  592;  Noonan  v.  Lee,  2  Black,  499,  509;  Thomp- 
son V.  Railroad  Co.,  6  Wall.  134,  137;  Dunphy  v.  Kleinsmith,  11  Wall.  610, 
614;  Walker  v.  Dreville,  12  Wall.  440  (in  Louisiana)  ;  Basey  v.  Gallaglier, 
20  Wall.  670,  679,  1  Mont,  Ter.  457;  Case  of  Brodericks  Will,  21  Wait 
503;  Shuford  v.  Cain,  1  Abb.  302,  305;  Loring  v.  Downer,  1  McAll.  360,  362; 
Mezes  v.  Greer,  1  McAll.  401,  402;  Byrd  v.  Badger,  1  McAll.  443,  444; 
Lorman  v.  Clarke,  2  McLean,  568;   Putnam  v.  City  of  New  Albany,  4  Biss. 


18  How.  460,  15  L.  ed.  449;  Hipp  v. 
Babin,  19  How.  271,  15  L.  ed.  633; 
Bronson  v.  Schulten,  104  U.  S.  410, 
26  L.  ed.  797;  In  re  Sa^vyer,  124 
U.  S.  200,  210,  8  Sup.  Ct.  487;  Wil- 
lard  V.  Wood,  135  U.  S.  309,  10  Sup. 
Ct.  831;  Dodge  v.  Tulleys,  144  U.  S. 
451,  12  Sup.  Ct.  728;  California  t. 
Southern  Pac.  Co.,  157  U.  S.  229,  15 
Sup.  Ct.  591;  Nalle  v.  Young,  160 
U.  S.  624,  16  Sup.  Ct.  420;  Fitts  v. 
McGhee,  172  U.  S.  516,  531,  19  Sup. 
Ct.  209,  275;  Fletcher  v.  Morey,  2 
Story,  567,  Fed.  Cas.  No.  4,864;  Al- 
ger V.  Anderson,  92  Fed.  690,  700, 
710. 

As  to  the  equity  jurisdiction  of 
the  United  States  courts  in  Louisi- 
ana, see  Livingston  v.  Story,  9  Pet. 
C32;  Gaines  v.  Pa-lf,  15  Pet.  9;  Mc- 
Collum  v.  Eager,  2  How.  01;  Bein  v. 
Hcatli,  12  JIow.  168;  Wiilkcr  v.  Dre- 
ville, 12  Wall.  440;  Hidings  v.  John- 
son, 128  U.  S.  212,  217,  9  Sup.  Ct. 
72,  74;  New  Orleans  v.  Louisiana 
Construction  Co.,  129  U.  S.  40,  47,  9 


Sup.  Ct.  223,  224;  Fleitas  v.  Rich- 
ardson, 147  U.  S.  538,  545,  13  Sup, 
Ct.   429,   432. 

Effect  of  the  Codes.— The  federal 
courts  refuse  to  conform  to  those' 
provisions  of  the  codes  which  per- 
mit the  iniiting  of  legal  and  equitable 
causes  of  action  in  the  same  suit: 
Hurt  V.  Hollingsworth,  100  U.  S. 
100,  103,  25  L.  ed.  571  (Texas)  ;  La 
Mothe,  etc.,  Co.  v.  Tube,  etc.,  Co.,  15- 
Blatchf.  436,  Fed.  Caa.  No.  8,033; 
Kenton,  etc.,  Co.  v.  McAlpin,  5  Fea. 
737,  740;  Gudger  v.  Western,  etc.,  R. 
Co.,  21  Fed.  81,  84;  Phelps  v.  Elliott,. 
23  Blatchf.  473,  26  Fed.  881,  883; 
Cherokee  Nation  v.  Southern  Kansas 
Ry.,  33  Fed.  900,  914;  Union  Pac. 
R.  Co.  v.  United  States,  59  Fed. 
813,  19  U.  S.  App.  531,  8  C.  C.  A. 
282;  Blalock  v.  Equitable  L.  Assur. 
Soc,  75  Fed.  43,  21  C.  C.  A.  208  (in 
a(;tion  at  law  for  fraud  and  deceit  in 
obtaining  the  surrender  of  an  insur- 
ance policy,  a  prayer  for  equitable 
relief   should   be   treated   as   surplus- 


495 


JUDICIAL    INTEKPRETATION    OF    JURISDICTION. 


§293 


legislation  which  deals  with  subjects  belonging  to  the  gen- 
eral system  of  equity  jurisprudence.  State  laws  subtract- 
ing from  or  limiting  the  scope  of  equity  do  not  act  upon 
the  equitable  powers  and  jurisdiction  held  by  the  national 

365.  Tlie  principle  was  concisely  and  clearly  stated  in  Shuford  v.  Cain, 
1  Abb.  Pr.  302,  305,  by  Erskine,  J.:  "  In  the  courts  of  many  states  —  Georgia, 
for  example  —  law  and  equity  are  in  a  greater  or  less  degree  blended. 
This  commingling  is  unknown  in  the  national  courts.  ...  As  courts  of 
equity,  they  entertain  suits  in  which  the  relief  is  sought  according  to  the 
principles,  and  in  general  the  practice,  of  the  equity  jurisdiction  as  estab- 
lished in  English  jurisprudence;"  citing  Parsons  v.  Bedford,  3  Pet.  447^ 
Robinson  v.  Campbell,  3  Wheat.  212;  United  States  v.  Rowland,  4  Wheat.  108; 
Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  519.  In  Thompson  v.  Railroad 
Co.,  G  Wall.  134,  137,  the  supreme  court  distinctly  held  that  the  state  codes 
abolishing  the  distinction  between  legal  and  equitable  proceedings,  and 
establishing  one  civil  action,  etc.,  do  not  affect  the  jurisdiction  or  methods 
of  the  United  States  courts  in  such  states.  In  Putnam  v.  New  Albany,  4  Biss. 
365,  it  was  held  that  the  Indiana  code  of  procedure  giving  certain  equitable 
remedies  in  courts  of  law  does  not  oust  a  court  of  equity  of  its  former  juris- 
diction to  give  the  same  or  similar  remedies  by  suit. 


age)  ;  In  re  Foley,  76  Fed.  396;  Coit 
V.  Sullivan,  etc.,  Co.,  84  Fed.  724, 
725;  Berkey  v.  Cornell,  90  Fed.  711, 
717;  First  Nat.  Bank  v.  Prager,  91 
Fed.  689,  692,  63  U.  S.  App.  709; 
or  which  permit  legal  relief,  such  as 
ejectment,  to  be  based  upon  an  equi- 
table title:  Fenn  v.  Holme,  21  How. 
484,  16  L.  ed.  199;  Hooper  v.  Schei- 
mer,  23  How.  235,  16  L.  ed.  452; 
Sheirburn  v.  De  Cordova,  24  How. 
423,  16  L.  ed.  741 ;  Bouldin  v.  Phelps, 
12  Sawy.  315,  30  Fed.  547,  561; 
Kircher  v.  Murray,  54  Fed.  617,  626, 
60  Fed.  52,  23  U.  S.  App.  214  (tres- 
pass to  try  title  cannot  be  sustained 
on  the  wife's  equitable  interest  in 
the  community  property)  ;  Stone  v. 
Perkins,  85  Fed.  616,  620  (plaintiff 
in  ejectment  can  get  no  support  on 
ground  of  estoppel ;  or  which  per- 
mit an  equitable  defense  to  be  set  up 
in  a  legal  action :  Jones  v.  McMas- 
ters,  20  How.  8,  22,  15  L.  ed.  805 
(Texas)  ;  Greer  v.  Mezes,  24  How. 
268,  277,  16  L.  ed.  661;  Singleton  v. 
Touchard,  1  Black,  345,  17  L.  ed.  50; 


Burnes  v.  Scott,  117  U.  S.  582,  587, 
6  Sup.  Ct.  868  (reviewing  cases)  ; 
Northern  Pac.  R.  R.  v.  Paine,  119 
U.  S.  561,  563,  7  Sup.  Ct.  323;  But- 
ler v.  Young,  1  Flipp.  277,  Fed.  Cas. 
No.  2,245;  Monti  jo  v.  Owen,  14 
Blatchf.  325,  Fed.  Cas.  No.  9,722; 
Lerma  v.  Stevenson,  40  Fed.  356, 
359;  Boggs  v.  Wann,  58  Fed.  681; 
Wilcox,  etc.,  Co.  v.  Phoenix  Ins.  Co., 
61  Fed.  199;  Davis  v.  Davis,  72  Fed. 
81,  84,  30  U.  S.  App.  723,  18  C.  C.  A. 
438;  Owens  v.  Heidbreder,  78  Fed. 
837,  24  C.  C.  A.  362  (Texas:  trespass 
to  try  title)  ;  Daniel  v.  Felt,  100  Fed. 
727;  Mulqueen  v.  Schlichter  Jute 
Cordage  Co.,  108  Fed.  931;  Highland 
Boy  Gold  Min.  Co.  v.  Strickley,  116 
Fed.  852;  McManus  v.  Chollar, 
(C.  C.  A.),  128  Fed.  902;  Tegarden 
V.  La  Marchel,  129  Fed.  487.  Thus, 
a  federal  court  has  no  power  to  per- 
mit an  equitable  set-off  or  counter- 
claim in  an  action  at  law:  Scott  v. 
Armstrong,  146  U.  S.  499,  ~  512,  13 
Sup.  Ct.  148,  152;  Snyder  v.  Pharo, 
25    Fed.    398,   399,    400;    Jewett    Car 


§  293 


EQUITY   JTJRISPRTJDENCB. 


496 


courts.  But  while  state  legislation  cannot  thus  influence 
the  jurisdiction  negatively  so  as  to  narrow  it,  it  may  oper- 
ate aflBrmatively  so  as,  at  least  indirectly,  to  enlarge  it. 
The  actual  jurisdiction  of  the  United  States  courts  in  large 
measure  depends  upon  the  personalty  of  the  litigant  par- 
ties,—  their  state  citizenship, —  and  extends  to  all  subject- 
matters  belonging  to  such  tribunals.  The  primary  rights, 
interests,  or  estates  of  the  litigant  parties,  which  are  dealt 
with  by  the  exercise  of  this  jurisdiction,  must  often,  there- 
fore, be  created  by  state  laws,  and  not  by  statutes  of  Con- 


Co.  V.  Kirkpatrick  Constr.  Co.,  107 
Fed.  622 ;  nor  an  equitable  plea,  in 
an  action  of  ejectment,  that  the  de- 
fendant had  in  good  faith  and  with 
the  plaintiff's  knowledge  put  valu- 
able improvements  on  the  land;  Doe 
V.  Roe,  31  Fed.  100;  nor  a  defense 
of  fraud  or  usury  in  an  action  on  a 
judgment:  BuUer  v.  Sidell,  43  Fed. 
116;  Turner  v.  Hamilton,  88  Fed. 
467,  473.  In  an  action  on  contract, 
persons  claiming  labor  liens  cannot 
intervene  to  have  them  enforced; 
Gravenburg  v.  Laws,  100  Fed.  1,  40 
C.  C.  A.  240.  Where,  in  an  action 
for  damages,  a  release  was  set  up, 
the  plaintiff  cannot,  in  the  same  ac- 
tion, procure  the  release  to  be  set 
aside  on  the  ground  of  fraud  or  un- 
due influence:  Johnson  v.  Merry 
Mount  Granite  Co.,  53  Fed.  509;  Hill 
v.  Northern  Tac.  R.  Co.,  104  Fed. 
754,  113  Fed.  914,  51  C.  C.  A.  544. 

In  Bennett  v.  Butterworth,  11 
How.  009,  674,  675,  13  L.  ed.  859, 
Taney,  C.  J.,  speaks  thus  of  the  ef- 
fect of  state  statutes  abolishing  the 
distinction  between  legal  and  equi- 
table actions:  "Whatever  may  be 
the  laws  of  Texas  in  this  respect, 
they  do  not  govern  the  proceedings 
in  the  courts  of  the  United  States. 
And  although  the  forms  of  proceed- 
ings and  practice  in  the  state  courts 
have  been  adopted  in  the  district 
court,  yet  the  adoption    of  the   state 


practice  must  not  be  understood  as 
confounding  the  principles  of  law  and 
equity,  nor  as  authorizing  legal  and 
equitable  claims  to  be  blended  to- 
gether in  one  suit.  The  constitution 
of  the  United  States  in  creating  and 
defining  the  judicial  power  of  the 
general  government  establishes  this 
distinction  between  law  and  equity; 
and  a  party  who  claims  a  legal  title 
must  proceed  at  law,  and  may  un- 
doubtedly proceed  according  to  tlie 
forms  of  practice  in  such  cases  in 
the  state  court.  But  if  the  claim 
is  an  equitable  one,  he  must  proceed 
according  to  rules  which  this  court 
has  prescribed  (under  the  authority 
of  the  Act  of  Aug.  23,  1842)  regu- 
lating proceedings  in  equity  in  the 
courts  of  the   United   States." 

The  provision  of  the  codes  requir- 
ing suits  to  be  in  the  name  of  the 
*'  real  party  in  interest "  is  followed 
on  the  law  side  of  the  federal  courts; 
consequently  there  is  no  necessity  for 
the  assignee  of  a  chose  in  action  to 
sue  in  equity:  Thompson  v.  Central 
Ohio  R.  R.  Co.,  6  Wall.  134,  18  L.  ed. 
705;  Ilayward  v.  Andrews,  106  U.  S. 
67S,  1  Sup.  Ct.  544,  549;  Akerly  v. 
Vilas,  3  Biss.  338,  Fed.  Cas.  No.  120; 
Weed,  etc.,  Co.  v.  Wicks,  3  Dili.  205, 
Fed.  Cas.  No,  17,348;  Daniels  v. 
Citizens'  Ins.  Co.,  10  Biss.  120,  6 
Fed.   425,  429. 


497  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  293 

gress.  It  has  accordingly  been  repeatedly  held  that  while 
the  equitable  jurisdiction  cannot  be  narrowed  or  limited  by 
any  state  legislative  or  judicial  action,  on  the  other  hand,  if 
equitable  primary  rights,  interests,  or  estates  have  been  en- 
larged, or  if  entirely  new  equitable  primary  rights  or  inter- 
ests have  been  created,  by  state  laws,  such  enlarged  or  new 
rights  will  necessarily  come  within  the  equity  jurisdiction 
of  the  national  courts,  and  may  be  protected,  maintained, 
and  enforced  in  appropriate  suits  by  proper  remedies.^ ' 

1  Pratt  V.  Northam,  5  Mason,  95,  105;  Lorman  v.  Clarke,  2  McLean,  568; 
Livingston  v.  Van  Ingen,  1  Paine,  45;  Canal  Co.  v.  Goidon,  6  Wall.  561,  568; 
Barber  v.  Barber,  21  How.  582,  591,  592;  Case  of  Broderick's  Will,  21  Wall. 
503;  Noonan  v.  Lee,  2  Black,  499,  509;  Livingston  v.  Story,  9  Pet.  632; 
-Clark  V.  Smith,  13  Pet.  195,  203;  Putnam  v.  New  Albany,  4  Biss.  365.  In 
Pratt  V.  Northam,  5  Mason,  95,  Story,  J.,  thus  stated  the  general  doctrine: 
"  It  has  been  often  decided  by  the  supreme  court  that  the  equity  jurisdic- 
tion of  the  courts  of  the  United  States  is  not  limited  or  restrained  by  the 
local  remedies  in  the  different  states;  that  it  is  the  same  in  all  the  states, 
and  is  the  same  which  is  exercised  in  the  land  of  our  ancestors,  from  whose 
jurisprudence  our  own  is  derived;  "  citing  Robinson  v.  Campbell,  3  Wheat. 
212;  United  States  v.  Howland,  4  Wheat.  108,  115.  In  Lorman  v.  Clarke, 
5  McLean,  568,  McLean,  J.,  decided  in  the  circuit  court  for  Michigan,  that 
the  "  United  States  courts  derive  their  equity  as  well  as  their  common-law 
jurisdiction  from  the  constitution  and  laws  of  the  United  States.  In  states 
where  there  is  no  chancery  court,  the  equity  jurisdiction  of  the  United 
States  courts  is  the  same  as  in  other  states.     A  state  cannot  enlarge  nor 

(a)    Jurisdiction  not  Abridged   by  169;    Taylor   v.    Louisville    &    N.    R. 

State  Legislation.  Co.,  88  Fed.  350,  359,  60  U.  S.  App. 

Injunction. —  The  jurisdiction,  on  185,  31  C.  C.  A.  537;  Bank  of  Ken- 
the  ground  of  avoiding  a  multiplic-  tucky  v.  Stone,  88  Fed.  383,  391. 
ity  of  suits,  to  enjoin  the  enforce-  Jurisdiction  to  enjoin  trespass  is 
ment  of  a  state  statute  providing  not  ousted  by  the  statutory  action  of 
for  the  fixing  of  railroad  rates,  is  forcible  entry  and  detainer:  Poke- 
unaffected  by  the  fact  that  the  stat-  gama  S.  P.  L.  Co.  v.  Klamath  R.  L. 
ute  provides  a  legal  remedy;  Smyth  &  I.  Co.,  96  Fed.  34,  55.  The  right 
v.  Ames,  169  U.  S.  466,  516,  18  to  an  injunction  in  the  federal  courts 
Sup.  Ct.  418,  422.  The  right  to  against  the  enforcement  of  a  state 
enjoin  illegal  taxation  upon  some  court  judgment  procured  by  fraud, 
recognized  equitable  ground,  such  as  accident,  or  mistake  cannot  be  im- 
cloud  upon  title  to  real  estate,  is  not  paired  by  a  state  statute  giving  a 
barred  by  the  existence  of  special  new  remedy  against  the  unconscion- 
fitatutory  remedy :  Gregg  v.  Sanford,  able  judgment  in  the  state  courts : 
65  Fed.  151,  157,  28  U.  S.  App.  313;  National  Surety  Co.  v.  State  Bank, 
Third  Nat.  Bank  v.  Mylen,  76  Fed.  120  Fed.  593,  (C.  C.  A.);  Breeden 
385;   Brown  v.  French,  80  Fed.   166,  v.    Lee,    2    Hughes,    488,    Fed.    Cas. 

Vol.  I  — 32 


193 


EQUITY    JURISPRUDENCE. 


498 


A  very  striking  illustration  of  this  principle  may  be  seen 

restrict  the  jurisdiction  of  the  United  States  courts.  But  the  primary  right* 
of  parties  may  be  governed  by  or  created  by  the  laws  of  a  state;  and  the  juris- 
diction of  the  United  States  to  adjudicate  upon  those  rights,  and  the  modes 
whether  equitable  or  legal,  are  governed  by  United  States  laws,"  In  Barber 
V.  Barber,  21  How.  582,  591,  592,  Wayne,  J.,  said:  "It  is  no  objection  tor 
the  equity  jurisdiction  in  the  courts  of  the  United  States,  that  there  ia  a 
remedy  under  the  local  law,  for  the  equity  jurisdiction  of  the  federal  courts 
is  the  same  in  all  the  states,  and  is  not  affected  by  the  existence  or  non- 
existence of  an  equity  jurisdiction  in  the  state  tribunals.  It  is  the  same 
in  nature  and  extent  as  the  jurisdiction  of  England,  whence  it  is  derived;  " 
citing  Livingston  v.  Story,  9  Pet.  632.  In  Case  of  Broderick's  Will,  21  Wall. 
503,  the  supreme  court  held  that  "  alterations  in  the  jurisdiction  of  state 
courts  cannot  affect  the  equitable  jurisdiction  of  the  United  States  courts, 
so  long  as  the  equitable  rights  themselves  remain;  but  an  enlargement  of 
equitable  rights  may  be  administered  by  United  States  courts  as  well  as 
by  the  state  courts." 


No.  1,828;  Davenport  v.  Moore,  74 
Fed.  945,  952;  Missouri,  K.  &  T. 
Co.  V,  Elliott,  56  Fed.  775.  It  is 
proper  for  the  federal  court  in  such 
cases  to  be  guided  by  a  state  statute 
which  requires  the  complainant  to 
show  that  he  is  equitably  not  boimd 
to  pay  the  judgment;  Massachusetts 
Benefit  Life  Ass'n  v.  Lohmiller,  74 
Fed.  23,  29,  20  C.  C.  A.  274,  46  U.  S. 
App.  103.  Injunction  against  the 
levying  of  an  execution  on  partner- 
ship property  in  whicli  tlie  judgment 
debtor  had  no  interest  will  not  be  de- 
nied because  the  state  statute  pro- 
vides a  legal  remedy;  Cropper  v, 
Coburn,  2  Curt.  4G5,  472,  Fed.  Cas. 
No.  3,416. 

Cancellation. —  A  bill  by  a  mort- 
gagee to  set  aside  a  fraudulent  tax 
Kale  of  the  premises  is  not  airectcd 
by  a  state  statute  limiting  the  rem- 
edy to  the  owner ;  Singer  Mfg.  Co. 
V.  Yarger,  2  McCrary,  585,  12  Fed. 
487,  488.  Jurisdiction  to  cancel  a 
forged  instrument  on  the  ground  of 
possible  loss  of  evidence  in  a  future 
Biiit  thereon  cannot  be  abridged  by 
the  existence  of  state  statutes  pro- 
viding for  the  per|)ctuation  of  testi- 
mony; Schmidt  v.  West,  104  Fed. 
272.    See  also  United  States  Life  Ins. 


Co.  v.  Cable,  98  Fed.  7G1,  39  CCA. 
756.  Statutory  remedy  by  motion  to 
vacate  an  award  of  arbitrators  does 
not  deprive  the  federal  courts  of  ju- 
risdiction to  set  aside  the  award  and 
enjoin  actions  theieon;  Haitfoid 
Fire  Ins.  Co.  v.  Bonner  Mercantile 
Co.,  44  Fed.  151,  II  L.  R.  A,  623. 

Partition. — The  general  jurisdiction 
of  the  federal  courts  as  courts  of 
equity  cannot  be  limited  by  a  state 
statute  confining  the  remedy  to  com- 
plainants in  possession;  Lamb  v. 
Starr,  Deady,  350,  Fed.  Cas.  No. 
8,021. 

Specific  Performance  of  a  contract 
to  convey  lands  may  be  enfoiced 
against  a  municipality,  although 
there  is  an  adequate  remedy  by  man- 
damus in  the  state  courts ;  Provi- 
sional Municipality  of  Pensacola  v. 
Lehman,  57  Fed.  324,  331,  13  U.  S. 
App.  411.  And  specific  performance 
by  a  municipality  of  an  obligation 
in  the  nature  of  an  implied  trust  to 
deliver  certain  bonds  may  be  com- 
pelled, notwithstanding  that  the  state 
provides  a  special  statutory  remedy ; 
Kimball  v.  Mobile,  3  Woods,  565, 
Fed.  Cas.  No.   7,774. 

Foreclosure  of  Mortgages. —  The  ex- 
istence of   a   state   statutory   remedy 


499 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


§  293' 


in  tlie  power  of  the  United  States  circuit  courts  to  entertain. 


does  not  oust  the  federal  equity  jij- 
lisdiction:  Benjamin  v.  Cavaroc,  2 
Woods,  172,  Fed.  Cas.  No.  1,300; 
Ray  V.  Tatum,  72  Fed.  112,  30  U.  S. 
App.  035  (deed  absolute  in  form)  ; 
H.  B.  Claflin  Co.  v.  Furtick,  119  Fed. 
429  (chattel  mortgage).  The  juris- 
diction is  not  affected  by  the  fact 
that  the  mortgagor  has  made  a  stat- 
utory general  assignment  for  the 
benefit  of  creditors,  which  would  have 
the  effect  of  limiting  a  citizen  of  the 
same  state  to  enforcing  the  mort- 
gage in  the  court  which  was  admin- 
istering the  property;  Edwards  v. 
Hill,  59  Fed.  723,  19  U.  S.  App.  493. 

Equitable  Liens  may  be  enforced  in 
the  federal  courts,  although  no  rem- 
edy is  provided  for  the  enforcement 
of  such  liens  by  the  state  jurispru- 
dence in  the  state  courts;  Burdon 
Cent.  Sugar  Refin.  Co.  v.  Ferris 
Sugar  Mfg.  Co.,  78  Fed.  417,  422. 

Creditor's  Bills  will  lie  in  the  fed- 
eral courts,  in  accordance  with  the 
general  principles  of  equity,  notwith- 
standing that  the  judgment  creditor 
may  have  a  legal  remedy  available 
in  the  courts  of  the  state.  See 
United  States  v.  Howland,  4  Wheat. 
108,  4  L.  ed.  526  (a  leading  case; 
legal  remedy  in  state  courts  against 
the  debtor  of  complainants'  debtor)  ; 
Byrd  v.  Badger,  1  McAll.  445,  Fed. 
Cas.  No.  2,266  (proceedings  supple- 
mentary to  execution,  being  equitable 
in  their  nature,  cannot  be  pursued  on 
the  law  side  of  the  court)  ;  Orendorf 
V.  Budlong,  12  Fed.  24  (setting  aside 
fraudulent  conveyance)  ;  Fleisher  v. 
Green wald,  20  Fed.  547  (setting  aside 
fraudulent  deed  of  assignment) ;  First 
Nat.  Bank  v.  Steinway,  77  Fed.  661; 
Mississippi  Mills  v.  Cohn,  150  U.  S. 
202,  14  Sup.  Ct.  75. 

Miscellaneous. —  See  United  States 
V.  Parrott,  1  McAll.  288,  Fed. 
Cas.   No.    15j998    (injunction   against 


waste)  ;  Pittsburgh,  C.  &  St.  L.  R^ 
Co.  V.  Keokuk  cc  H.  Bridge  Co., 
68  Fed.  19,  46  U.  S.  App.  530  (ac- 
counting) ;  General  Electric  Co.  v. 
West  Asheville  Imp.  Co.,  73  Fed.  386- 
(winding  up  affairs  of  defunct  cor- 
porationj ;  Sovvles  v.  First  Nat,  Bank, 
100  Fed.  552  (establishing  a  set- 
off) ;  Barrett  v.  Twin  City  Power 
Co.,    118  Fed.   861. 

Enlargement  of  Jurisdiction  as  Re- 
sult of  State  Legislation. —  That  an.. 
"enlargement  of  equitable  rights" 
effected  by  state  legislation  may  Le- 
administered  by  the  federal  courts  i*. 
a  familiar  doctrine.  "Although  a 
state  law  cannot  give  jurisdiction  tO' 
any  federal  court,  yet  it  may  give  a 
substantial  right  of  such  a  character - 
that,  when  there  is  no  impediment 
arising  from  the  residence  of  the-- 
parties,  the  right  may  be  enforced 
in  the  proper  federal  tribunal,., 
whether  it  be  a  court  of  equity,  ad- 
miralty, or  of  common  law;"  Rey- 
nolds V.  Crawfordsville  Bank,  112'. 
U.  S.  410,  5  Sup.  Ct.  216.  This  prin- 
ciple, however,  is  subject  to  import- 
ant limitations  produced  by  section, 
723  of  the  Revised  Statutes,  and  by 
the  seventh  amendment  of  the  Con- 
stitution of  the  United  States.  The- 
state  law  "  cannot  control  the  pro- 
ceedings in  the  federal  courts,  so  as 
to  do  away  with  the  force  of  the 
law  of  congress  declaring  that  '  suit& 
in  equity  shall  not  be  sustained  in 
either  of  the  courts  of  the  United 
States,  in  any  case  where  a  plain,., 
adequate,  and  complete  remedy  may 
be  had  at  law,'  or  the  constitutional; 
right  of  parties  in  actions  at  law  to- 
a  trial  by  a  jury;"  Whitehead  v. 
Shattuck,  138  U.  S.  146,  11  Sup.  Ct. 
277,  by  Field,  J.  "All  actions  which 
seek  to  recover  specific  property,  real 
or  personal,  with  or  without  damages 
for  its   detention,  or  a  money   jud^- 


§  293 


EQUITY   JUEISPEUDENCE. 


500 


a  suit  for  the  general  administration  and  settlement  of  a 


«Qent  for  breach  of  a  simple  coa- 
"traet,  or  as  damages  for  injury  to 
person  or  property,  are  legal  actions, 
and  can  be  brought  in  the  federal 
courts  only  on  their  law  side.  De- 
mands of  this  kind  do  not  lose  their 
character  as  claims  cognizable  in  the 
courts  of  the  United  States  only  on 
their  law  side,  because  in  some  state 
■courts,  by  virtue  of  state  legisla- 
tion, equitable  relief  in  aid  of  the 
•demand  at  law  may  be  sought  in  the 
^ame  action.  Such  blending  of  reme- 
•dies  is  not  permissible  in  the  courts 
■of  the  United  States;"  Scott  v. 
Neely,  140  U.  S.  106,  11  Sup.  Ct. 
712,  714,  by  Field,  J. 

The  following  cases,  among  many 
others,  illustrate  this  principle:  The 
federal  courts  will  follow  a  state  stai- 
<ute  extending  the  right  to  an  in- 
junction against  illegal  taxation;  no 
constitutional  right  to  a  jury  trial 
is  infringed  by  such  remedy;  Cum- 
mings  V.  National  Bank,  101  U.  S. 
157,  25  L.  ed.  904;  Lindsay  v.  First 
Nat.  Bank,  156  U.  S.  485,  493, 
15  Sup.  Ct.  472,  475;  Grether  v. 
Wright,  75  Fed.  742,  746,  43  U.  S. 
^pp.  770;  Lander  v.  Mercantile  Nat. 
.Bank,  118  Fed.  785,  791,  (C.  C. 
A.);  dispensing  with  an  allegation 
or  proof  of  defendant's  insolvency  in 
an  action  to  enjoin  the  cutting  of 
timber;  Lanier  v.  Allison,  31  Fed. 
100,  102;  extending  the  remedy  of 
interpleader  to  cases  where  the  con- 
flicting claims  are  independent  of 
each  other;  Wells,  Fargo  &  Co.  v. 
Miner,  25  Fed.  533;  allowing  par- 
tition of  joint  possessory  rights  to 
«  mining  claim;  Aspen  Alining  &  S. 
Co.  V.  Kuckcr,  28  Fed.  220;  contra, 
Strettell  v.  Ballon,  3  McCrary,  46,  9 
Fed.  250;  declaring  a  preferential 
«B8ignment  to  be  a  trust  for  the 
>benefit  of  all  the  creditors  of  the 
assignor;  George  T.  Smith  M.  P.  Co. 


V.  McGroarty,  136  U.  S.  240,  10  Sup. 
Ct.  1019;  dispensing  with  the  re- 
quirement that  the  complainant  must 
do  equity,  in  a  suit  to  set  aside  a 
usurious  contract;  Missouri,  K.  &  T. 
Trust  Co.  V.  Krumseig,  172  U.  S. 
359,  361,  19  Sup.  Ct.  179,  182,  18S, 
affirming  77  Fed.  41,  40  U.  S.  App. 
020;  empowering  courts  of  equity 
to  pass  the  title  to  real  estate  by  d'^- 
cree,  without  any  act  on  the  part  of 
the  respondent;  A.  &  W.  Sprague 
Mfg.  Co.  V.  Hoyt,  29  Fed.  421,  428; 
Single  V.  Scott  Paper  Mfg.  Co.,  55 
Fed.  553,  556;  Deck  v.  Whitman,  96 
Fed.  873,  reviewing  many  cases; 
authorizing  the  appointment  of  a  re- 
ceiver of  a  corporation  on  the  sole 
ground  of  its  insolveucy,  at  the  suit 
of  mortgage  creditors;  United  States 
Shipbuilding  Co.  v.  Conklin,  126  Fed. 
132,  (C.  C.  A. )  ;  authorizing  the 
winding  up  of  an  insolvent  corpora- 
tion at  the  suit  of  a  stockholder; 
Jacobs  V.  Mexican  Sugar  Co.,  130 
Fed.  589. 

It  is  often  a  question  of  doubt 
whether  the  new  right  or  remedy  is 
legal  or  equitable  in  its  nature. 
"  Whenever  a  new  right  is  granted 
by  statute,  or  a  new  remedy  for  vio- 
lation of  an  old  right,  or  whenever 
such  rights  and  remedies  are  depend- 
ent on  state  statutes  or  acts  of  Con- 
gress, the  jurisdiction  of  such  cases, 
as  between  the  law  side  and  the 
equity  side  of  the  federal  courts,  must 
be  determined  by  the  essential  char- 
acter of  the  case;  and  unless  it  comes 
within  some  of  the  recognized  heads 
of  equitable  jurisdiction,  it  must  be 
held  to  belong  to  the  other."  Van 
Norden  v.  Morton,  99  U.  S.  378,  380, 
25  L.  ed.  455 ;  Cherokee  Nation  v. 
Southern  Kan.  R'y  Co.,  135  U.  S. 
041,  051,  10  Sup.  Ct.  965,  969,  33 
Fed.  900,  914;  Tliomas  v.  American 
Freehold,   etc.,   Co.,   47    Fed.   550,    12 


501 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§293 


decedent's  personal  estate,   when   the  citizenship  of  the 


L.  R.  A.  686;  Cummings  v.  National 
Bank,  101  U.  S.  157,  25  L.  ed.  904; 
Robinson  v.  Campbell,  3  Wheat,  212, 
223,  4  L.  ed.  372. 

In  the  following  cases  it  was  held 
that  the  new  right  created  by  statute 
should  be  asserted  on  the  equity  side 
of  the  federal  court:  When  the  re- 
lief prayed  for  was  in  the  nature  of 
a  decree  enjoining  the  collection  of 
taxes;  Lindsay  v.  First  Nat.  Bank, 
156  U.  S.  485,  493,  15  Sup.  Ct.  472, 
475;  statutory  proceedings  for  par- 
tition which,  by  the  state  practice, 
were  triable  without  a  jury;  Klever 
V.  Seawall,  65  Fed,  393,  22  U.  S.  App, 
715,  12  C.  C.  A.  661;  proceedings 
without  a  jury,  to  enforce  the  right 
of  an  occupying  claimant  of  land  to 
compensation  for  improvements  made 
thereon  in  good  faith;  Bank  of  Ham- 
ilton V.  Dudley's  Heirs,  2  Pet.  492; 
Griswold  v.  Bragg,  18  Blatchf.  204, 
48  Fed.  520;  proceedings  to  enforce 
a  mechanics'  or  laborers'  lieu,  where 
the  state  statute  gives  an  action  at 
law  for  the  purpose;  Sheffield  Fur- 
nace Co.  V.  Witherow,  149  U.  S.  574, 
679,  13  Sup.  Ct.  936,  939;  De  La 
Vergne  Refrig.  Mach.  Co.  v.  Mont- 
gomery Brewing  Co.,  46  Fed.  829; 
Idaho,  etc..  Land  Imp.  Co.  v.  Brad- 
bury, 132  U.  S.  509,  515,  10  Sup.  Ct. 
179;  or  provides  no  means  for  en- 
forcing it;  Gilchrist  v.  Helena  H.  S. 
&  S.  R.  Co.,  58  Fed.  708,  711, 
712;  proceedings  to  determine  and 
enforce  other  statutory  liens  upon 
land;  Alexander  v.  Mortgage  Co.  of 
Scotland,  47  Fed.  131,  134;  Mort- 
gage Security  Co.  v.  Gay,  33  Fed. 
636;  Thomas  v.  American  Freehold 
L.  &  M.  Co..  47  Fed.  550,  553,  12 
L.  R.  A.  681;  proceedings  to  en- 
join the  sale  of  land  under  an  execu- 
tion against  a  third  person  (Georgia 
"  claim  law " )  ;  Hall  v.  Yahoka  R. 
Min.  Co.,  1  Woods,  547,  Fed.  Cas.  No. 


5,955.  "  Proceedings  supplementary 
to  execution "  cannot  be  substituted 
for  a  creditor's  bill;  Byrd  v.  Badger, 
Fed.  Cas.  No.  2,266;  Regina  Music 
Box  Co.  V.  F.  G.  Otto  &  Son,  124 
Fed.  747;  unless  they  are  founded 
on  a  common-law  judgment,  in  which 
case  the  state  statute  may  be  fol- 
lowed, by  the  express  authorization 
of  Act  July  1,  1872,  chap.  255,  §  6; 
Re  Boyd,  105  U.  S.  647,  26  L.  ed^ 
1200. 

In  the  following  cases  the  statutory 
remedy  is  held  to  be  legal  in  its  na- 
ture: Special  proceedings  by  an  ad- 
ministrator for  leave  to  sell  lands  to 
pay  the  debts  of  a  decedent,  although 
held  by  the  state  court  to  be  essen- 
tially equitable,  must  be  placed  upon 
the  law  docket  of  the  federal  court, 
since  the  case  does  not  come  within 
any  of  the  recognized  heads  of  equity 
jurisdiction;  Elliott  v.  Shuler,  50 
Fed.  454;  a  state  statute  conferring 
equity  jurisdiction  in  cases  of  ac- 
counting where  "  the  nature  of  the 
account  is  such  that  it  cannot  b© 
conveniently  and  properly  adjusted 
and  settled  in  a  court  of  law  "  does 
not  extend  the  jurisdiction  of  the 
federal  courts;  Hunton  v.  Equitable 
Life  Assur.  Soc,  45  Fed.  661;  and 
a  bill  cannot  be  entertained  for  parti- 
tion where  the  complainant  has  been 
disseized,  and  the  lands  are  held  ad- 
versely by  the  defendants,  although 
such  a  bill  is  permitted  by  the  state 
practice;  Sanders  v.  Devereux,  60 
Fed.  311,  315,  19  U,  S.  App.  630; 
Frey  v.  Willoughby,  63  Fed.  865, 
27  U.  S.  App.  417,  11  C.  C.  A. 
463;  or  when  the  complainant's 
title  is  disputed;  American  Ass'n 
V.  Eastern  Kentucky  Land  Co.,  68 
Fed.  721.  Garnishment  proceed- 
ings cannot  be  entertained  on  the 
equity  side  of  the  federal  court; 
United  States  v.  Swan,  65  Fed.  647, 


293 


EQUITY    JURISPRUDENCE. 


502 


parties  is  such  as  to  confer  the  jurisdiction.    In  very  many 


•652,  31  U.  S.  App.  112.  Where  a 
new  liability,  aud  a  legal  remedy  lo 

enforce  the  same,  are  created  by  stat- 
-ute,  that  remedy,  and  that  alone, 
must  be  enforced;  so-  held  of  the 
statutory  liability  of  stockholders  for 
the  debts  of  the  corporation,  in 
JFourth  Nat.  Bank  v.  Francklyn, 
120  U.  S.  755,  7  Sup.  Ct.  757,  7U2; 
.National    Park   Bank   v.    Peavey,   64 

-Jed.    912;    First    National    Bank    v. 
Peavey,  69  Fed.  455;   and  see  Alder- 
son  V.  Dole,  74  Fed.  29,  33  U.  S.  App. 
460,  20  C.  C.  A.  280. 
Enlargement  of  Jurisdiction;  Statu- 

"tory  Suit  to  Quiet  Title. —  A  frequent 
application  of  these  principles  is 
found  in  the  federal  jurisdiction  over 
statutory  suits  to  quiet  title.  In 
the  absence  of  statute,  an  owner  of 
land  can  protect  his  title  in  equity 
only  by  a  bill  of  peace  or  by  a  bill 
■quia  timet  to  remove  a  cloud   upon 

'the  title.     A   bill   of   peace   properly 

'lies  against  an  individual  reiterat- 
ing an  unsuccessful  claim  to  real 
property  only  where  the  plaintiff  is 
in  possession  and  his  right  has  been 

-successfully  maintained  at  law.     The 

•equity  arises  from  the  protracted 
litigation  for  the  possession  which 
the  common-law  action  of  ejectment 
permits.      A   bill    quia    timet    to    re- 

•  move  cloud  upon  title  differs  from  a 
bill  of  peace  in  that  it  docs  not  seek 
so  much  to  put  an  end  to  vexatious 
litigation  as  to   prevent   future   liti 

-gation  by  removing  existing  causes 
of   controversy   as   to    its   title.      To 

maintain  a  suit  of  this  character  it 
is  generally  necessary  that  the  plain- 
tiff be  in  possession,  and,  except 
where  the  defendants  are  numerous, 
that  his  title  be  established  at  law 
or  founded  on  undisputed  evidence 
or  long-continued  possession.  The 
fltatutcB   in   various   states   authorize 

^«   Buit    in    citliiT    of    tlicsc   classes   of 


cases  without  reference  to  any  pre- 
vious judicial  determination  of  the 
validity  of  the  plaintiff''s  right,  and, 
in  some  instances,  without  reference 
to  his  possession. 

Where  the  statute  limits  the  right 
to  parties  in  possession,  the  federal 
courts  will  take  jurisdiction  without 
question.  The  point  arose  in  the 
early  case  of  Clark  v.  Smith,  13  Pet. 
195,  203,  where  the  right  was  claimed 
under  a  statute  of  Kentucky.  Ca- 
tron, J.,  said :  '"  Kentucky  has  the 
undoubted  power  to  regulate  and  pro- 
tect individual  rights  to  her  soil,  and 
to  declare  what  shall  form  a  cloud 
on  titles;  and  having  so  declared, 
the  courts  of  the  United  States,  by 
removing  such  clouds,  are  only  ap- 
plying an  old  practice  to  a  new 
equity  created  by  ^;he  legislature, 
having  its  origin  in  the  peculiar  con- 
dition of  the  country."  In  speak- 
ing of  such  a  statute,  the  court,  in 
Central  Pac.  R.  R.  Co.  v.  Dyer,  1 
Sawy,  649,  Fed.  Cas.  No.  2,552, 
said:  "It  dispenses  with  the  neces- 
sity of  the  previous  establishment  of 
the  right  of  the  plaintiff  by  repeated 
judgments  in  his  favor  in  actions  at 
law.  To  that  extent  it  confers  upon 
the  possessor  of  real  property  a  new 
right,  one  which  enables  him,  without 
the  delay  of  previous  proceedings  at 
law,  to  draw  to  himself  all  outstand- 
ing inferior  claims.  That  right  the 
nntional  courts  will  enforce  in  the 
same  manner  in  which  they  will  en- 
force other  equitable  rights  of  par- 
ties." See  also  Chapman  v.  Brewci, 
114  U.  S.  171,  5  Sup.  Ct.  799,  805; 
Bardon  v.  Land  &  River  Imp.  Co., 
157  U.  S.  327,  330,  15  Sup.  Ct.  650, 
651;  Wicklill'e  v.  Owens,  17  How.  47, 
51;  Provident,  etc.,  Trust  Co.  v. 
Mills,  91  Fed.  435;  Book  v.  Justit,.',. 
58  Fed.  830;  Bayerque  v.  Cohen,  1 
McAll.  117,  Fed.  Cas.  No.  1,134;  Law- 


503 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


293 


of  the  states  the  whole  subject  of  administration  has  been 


rence  v.  Bowman,  1  McAll.  423,  Fed. 
Cas.  No.  8,134;  Prentice  v.  Duluth, 
etc.,  Co.,  58  Fed.  437,  442,  7  C.  C.  A. 
293,  19  U.  S.  App.  100;  Gillia  v. 
Downey,  85  Fed.  483,  56  U.  S.  App. 
577;  Harmer  v.  Gwynne,  5  McLean, 
317,  Fed.  Cas.  No.  6,075.  For  a 
review  of  the  supreme  court  deci- 
sions up  to  1894,  see  Wehrman  v. 
Conklin,  155  U.  S.  314,  15  Sup.  Ct. 
132.  An  actual  possession  of  part  of 
the  premises  and  a  constructive  pos- 
•session  of  the  rest  is  sufficient;  Kob- 
erts  V.  Northern  Pac.  R.  Co.,  158 
U.  S.  1,  30,  15  Sup.  Ct.  756,  766. 
Where  the  statute  allows  the  suit 
by  a  party  either  in  or  out  of  pos- 
session, and  the  complainant  is,  as  a 
matter  of  fact,  in  possession,  the  bill 
may  be  maintained  in  the  federal 
court:  Connor  v.  Alligator  Lumber 
Co.,  98  Fed.  155;  Langstraat  v.  Nel- 
son, 40  Fed.  783;  Field  v.  Barber 
Asphalt  Co.,  117  Fed.  925;  Hanley 
V.  Beatty,  117  Fed.  59.  It  is  imma- 
terial that  there  may  be  an  action  of 
ejectment  pending  against  the  com- 
plainant: Langstraat  ■  V.  Nelson,  40 
Fed.  783. 

Where  the  statute  allows  a  suit  by 
A  party  out  of  possession,  a  federal 
court  will  not  as  a  general  rule  en- 
force it  if  the  complainant  is,  as  a 
matter  of  fact,  out  of  possession,  and 
defendant  is  in  possession.  It  is  pro- 
vided by  Rev.  Stats.,  §  723,  that  federal 
equity  courts  shall  not  have  jurisdic- 
tion where  a  plain,  complete,  and  ade- 
quate remedy  may  be  had  at  law,  and 
the  seventh  amendment  to  the  con- 
stitution of  the  United  States  secures 
the  right  of  jury  trial  in  all  actions 
at  law  where  the  value  in  controversy 
exceeds  twenty  dollars.  W^hen  the 
plaintiff  is  out  of  and  the  defendant 
in  possession,  the  remedy  by  eject- 
ment ia  said  to  be  adequate,  and  there 
must  be  a  jury  trial  if  desired.    "  The 


right  which  in  this  case  the  plaintiff 
wishes  to  assert  is  his  title  to  certain 
property ;  the  remedy  which  he  wishes 
to  obtain  is  its  possession  and  enjoy- 
ment; and  in  a  contest  over  the  title 
both  parties  have  a  constitutional 
right  to  call  for  a  jury;"  Whitehead 
v.  Shattuck,  138  U.  S.  146,  11  Sup. 
Ct.  276,  277.  See  also  Davidson  v. 
Calkins,  92  Fed.  230 ;  Gordon  v.  Jack- 
son, 72  Fed.  86;  Cosmos  Exploration 
Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4, 
60  C.  C.  A.  79,  61  L.  R.  A.  230; 
U.  S,  Min.  Co.  V.  Lawson,  115  Fed. 
1005;  Cal.  Oil  &  Gas  Co.  v.  Miller,  96 
Fed.  12;  Adoue  v.  Strahan,  97  Fed. 
961:  Gombert  v.  Lyon,  80  Fed.  305; 
Boston  &  Mont.  C.  C.  &  S.  M.  Co.  v. 
iMontana  Ore  P.  Co.,  188  U.  S.  632,  23 
Sup.  Ct.  434;  Morrison  v.  Marker, 
(C.  C.  A.),  93  Fed.  692,  695  (suit 
not  maintainable  by  purchaser  at 
execution  sale,  who  is  not  in  posses- 
sion, to  set  aside  prior  conveyance  as 
in  fraud  of  creditors)  ;  Giberson  v. 
Cook,  124  Fed.  986.  The  same  result 
was  reached  in  United  States  v.  Wil- 
son, 118  U.  S.  86,  6  Sup.  Ct.  993, 
under  a  provision  of  the  Tennessee 
code  giving  the  chancery  court  juris- 
diction over  an  action  of  ejectment. 
The  practice  in  such  cases  is  not  to 
dismiss  but  to  remand  to  the  state 
court;  Gombert  v.  Lyon,  80  Fed.  305. 
In  Greeley  v.  Lowe,  155  U.  S.  58,  75, 
15  Sup.  Ct.  24,  28,  it  is  said  that  the 
federal  courts  will  enforce  a  state 
statute  allowing  a  party  in  or  out  of 
possession  to  sue  to  quiet  title,  pro- 
vided it  does  not  infringe  the  consti- 
tutional right  to  a  trial  by  jury.  In 
Southern  Pac.  R.  Co.  v.  Goodrich, 
57  Fed.  879,  it  wa^  held  that  the 
plaintiff  must  allege  possession  in 
himself  or  deny  possession  in  defend- 
ant. It  is  not  sufficient  that  it  does 
not  appear  who  ia  in  possession.    But 


§  293 


EQUITY   JUKISPRUDENCE. 


504 


taken  from  the  equity  tribunals,  and  conferred  upon  pro- 


see  Union  Pac.  R.  Co.  v.  Meier,  28 
Fed.  9.  In  Morse  v,  Steinbach,  127 
U.  S.  70,  8  Sup.  Ct.  1067,  1072,  it 
was  held  that  a  failure  to  allege  and 
prove  possession  is  not  fatal  where 
the  statute  allows  a  party  out  of  pos- 
session to  maintain  the  bill.  Like- 
wise, in  Reynolds  v.  First  Nat.  Bank, 
112  U.  S.  410,  5  Sup.  Ct.  212,  216,  it 
was  held  that  a  federal  court  will  al- 
low a  party  either  in  or  out  of  posses- 
sion to  maintain  the  suit.  Appar- 
ently the  defendant  was  in  possession, 
but  the  relief  was  allowed.  In  both 
of  these  cases,  Holland  v.  Challen,  110 
U.  S.  15,  3  Sup.  Ct.  495,  was  relied 
upon.  As  is  shown  in  Whitehead  v. 
Shattuck,  138  U.  S.  146,  11  Sup.  Ct. 
276,  the  case  of  Holland  v.  Challen 
does  not  go  to  this  extent.  It  applies 
simply  where  both  plaintiflF  and  de- 
fendant are  out  of  possession.  Hence 
both  must  be  considered  as  overruled, 
so  far  as  they  are  contrary  to  the 
principles   laid  down  above. 

Although  a  party  be  out  of  posses- 
sion, if  equity  alone  can  award  the 
entire  relief  sought,  and  the  right  to 
possession  arises  only  incidentally, 
the  bill  will  be  retained  for  complete 
relief  and  the  right  to  possession  de- 
termined. Thus,  under  the  Burnt 
Records  Act  of  Illinois,  a  federal 
court  has  taken  jurisdiction  of  a  bill 
by  a  party  out  of  possession  to  restore 
a  destroyed  record  of  title,  and  inci- 
dentally has  decided  the  question  of 
poBsession.  Gormley  v.  Clark,  134 
U.  S.  338,  348,  10  Sup.  Ct.  5.54.  Like- 
wise, the  bill  has  been  retained  when 
the  plaintifT  has  sought  to  redeem 
from  a  fraudulent  foreclosure;  Hud- 
son V.  Randolph,  60  Fed.  21G,  23  U.  S. 
App.  081,  and  to  set  aside  fraudulent 
proceedings  under  which  deeds  were 
made;  Sayers  v.  Burkhardt,  85  Fed. 
246,  42  U.  S.  App.  742. 


Where  neither  party  is  in  posses- 
sion and  the  land  is  unoccupied,  the 
case  is  different.  In  such  a  case  there 
can  be  no  controversy  at  law  respect- 
ing the  title  or  right  of  possession, 
for  an  action  of  ejectment  will  lie 
only  against  a  party  in  possession. 
Accordingly  the  federal  courts  will 
take  jurisdiction  and  enforce  the 
equitable  right.  Holland  v.  Challen, 
110  U.  S.  16,  3  Sup.  Ct.  495.  The 
reasons  are  well  stated  in  a  recent 
case:  "As  it  appears  that  the  defend- 
ant was  not  in  possession  of  the  lands, 
and  that  the  plaintiff  has  no  adequate 
remedy  at  law,  and  that  the  defendant 
is  not  deprived  of  the  right  of  a  trial 
by  jury,  there  is  no  valid  objection  to 
the  jurisdiction  of  the  United  States 
circuit  court;"  Southern  Pine  Co.  v. 
Hall,  105  Fed.  84,  44  C.  C.  A.  363. 
See  also  Dick  v.  Foraker,  155  U.  S. 
404,  415,  15  Sup.  Ct.  124,  129;  Rob- 
erts v.  Northern  Pac.  R.  R.  Co.,  158 
U.  S.  1,  30,  15  Sup.  Ct.  756,  766; 
Davidson  v.  Calkins,  92  Fed.  230  j 
Gordon  v.  Jackson,  72  Fed.  86;  U.  S. 
Min.  Co.  V.  Lawson,  115  Fed.  1005  j 
Grand  Rapids,  etc.,  R.  Co.  v.  Spar- 
row, 30  Fed.  210,  211,  1  L.  R.  A.  482; 
Harding  v.  Guice,  80  Fed.  162,  42 
U.  S.  App.  411.  In  Blythe  v.  Hinck- 
ley, 84  Fed.  246,  256,  it  was  held  that 
the  bill  cannot  be  maintained  when  a 
public  administrator  is  in  possession, 
although  both  the  parties  to  the  suit 
are  out  of  possession.  Of  course, 
where  the  statute  expressly  authorizes 
a  suit  when  the  land  is  vacant,  the 
bill  will  be  sustained;  Bigelow  v. 
CTiatterton,  51  Fed.  614,  10  U.  S.  App. 
207,  2  C.  C.  A.  402. 

Tlie  mere  fact  thnt  the  decisions  of 
the  state  courts  warrant  the  relief 
does  not  authorize  the  federal  courts 
to  grant  it.     Thus,  in  Peck  v.  Ayers 


505 


JUDICIAL,    INTERPRETATION    OF    JURISDICTION. 


§293 


bate  courts  acting  under  special  statutory  authority.    This 


&  Lord  Tie  Co.,  116  Fed.  273,  "It  is 
not  claimed  that  there  is  any  statute 
in  Tennessee  which  enlarges  the  prin- 
ciples of  equity  in  this  regard,  but  it 
is  claimed  that  the  decisions  of  the 
supreme  court  of  the  state  respect- 
ing the  right  to  file  a  bill  to  quiet 
title  have  established  a  diflferent  rule 
from  that  generally  prevailing  in  the 
courts  of  the  United  States,  and  hold 
that  possession  by  the  plaintiff  is  not 
necessary.  But  this  is  a  mere  vari- 
ation of  decision  in  respect  of  a  prin- 
ciple of  general  equity,  and  we  are 
not  aware  of  any  precedent  for  hold- 
ing that  the  rule  so  established  can  be 
admitted  to  change  the  doctrines  of 
equity  as  recognized  and  applied  in 
the  federal  courts."  But  see,  contra, 
Lamb  v.  Farrell,  21  Fed.  5,  8. 

Statutory  Creditors'  Suits  by  Sim- 
ple Contract  Creditors. —  In  some  of 
the  states  statutes  have  been  passed 
allowing  simple  contract  creditors  to 
maintain  creditors'  bills  without  the 
establishment  of  their  claims  at  law. 
The  supreme  court  has  declined  to 
enforce  these  statutes.  In  the  lead- 
ing case  of  Scott  v.  Neely,  140  U.  S. 
106,  11  Sup.  Ct.  712,  Justice  Field 
said:  "All  actions  which  seek  to  re- 
cover specific  property,  real  or  per- 
sonal, with  or  without  damages  for  its 
detention,  or  a  money  judgment  for 
breach  of  a  simple  contract,  or  as 
damages  for  injury  to  person  or  prop- 
erty, are  legal  actions,  and  can  be 
brought  in  the  federal  courts  only  on 
their  law  side.  Demands  of  this 
kind  do  not  lose  their  character  as 
claims  cognizable  in  the  courts  of  the 
Unit«d  States  only  on  their  law  side, 
because  in  some  state  courts,  by 
virtue  of  state  legislation,  equitable 
relief  in  aid  of  the  demand  at  law 
may  be  sought  in  the   same  action. 


Such  blending  of  remedies  is  not  per- 
missible in  the  courts  of  the  United 
States."  Following  this  case,  Mr. 
Chief  Justice  Fuller,  in  Gates  v.  Al- 
len, 149  U.  S.  457,  13  Sup.  Ct.  883, 
after  pointing  out  that  the  right  to 
maintain  a  creditor's  bill  is  based 
upon  a  lien  upon  the  property,  said: 
"The  fact  that  section  1S45  aims  to 
create  a  lien  by  the  filing  of  the  bill 
does  not  affect  the  question,  for,  in 
order  to  invoke  equity  interposition 
in  the  United  States  courts,  the  lien 
must  exist  at  the  time  the  bill  is 
filed,  and  form  its  basis;  and  to  allow 
a  lien  resulting  from  the  issue  of 
process  to  constitute  such  ground 
would  be  to  permit  state  legislation 
to  withdraw  all  actions  at  law  from^ 
the  one  court  to  the  other,  and  unite 
legal  and  equitable  claims  in  the 
same  action,  which  cannot  be  allowed 
in  the  practice  of  the  courts  of  the 
United  States,  in  which  the  distinc- 
tion between  law  and  equity  is  matter 
of  substance,  and  not  merely  of  form 
and  procedure."  To  the  same  effect,, 
see  Smith  v.  Fort  Scott,  etc.,  R.  R. 
Co.,  99  U.  S.  401;  Mississippi  Milla 
V.  Cohn,  150  U.  S.  202,  14  Sup.  Ct. 
76;  Hollins  v.  Brierfield,  etc.,  Iron 
Co.,  150  U.  S.  371,  379,  14  Sup.  Ct. 
127,  128;  Peacock,  Hunt  &  West  Co. 
V.  Williams,  110  Fed.  917;  United 
States  V.  Ingate,  48  Fed.  251;  At- 
lanta, etc.,  R.  Co.  V.  Western  R. 
Co.,  50  Fed.  790,  794,  2  U.  S.  App. 
227,  1  C.  C.  A.  776;  England  v.  Rus- 
sell, 71  Fed.  818,  821,  824;  Childs  v. 
N.  B.  Carlstein  Co.,  76  Fed.  86,  92, 
95;  Tompkins  Co.  v.  Catawba  Mills, 
82  Fed.  780,  783 ;  First  Nat.  Bank  v. 
Prager,  91  Fed.  689,  692,  63  U.  S. 
App.  709 ;  Morrow  Shoe  Co.  v.  New 
England  Shoe  Co.,  60  Fed.  341,  18 
U.   S.  App.   616,  8   C.   C.  A.   652,  24 


?03 


EQUITY    JURISPRUDENCE. 


>0G 


legislation,  it  is  lielcl,  has  not 
jurisdiction  of  the  national 

L.  R.  A.  425 ;  Jacobs  v.  Mexican 
Sugar  Co.,  130  Fed.  589.  Likewise,  a 
federal  court  has  no  jurisdiction  over 
a  proceeding  for  equitable  attach- 
ment, although  allowed  under  the 
state  law.  Hall  v.  Gambril.  92  Fed. 
321,  63  U.  S.  App.  751,  34  C.  C.  A. 
190. 

In  Gates  v.  Allen,  however,  there  is 
a  vigorous  dissenting  opinion  by  Mr. 
Justice  Brown,  which  seems  to  have 
much  reason  on  its  side  (13  Sup.  Ct. 
977).  He  held  that  the  statute 
creates  a  substantial  right  which  the 
federal  courts  should  enforce.  "  In 
^;his  case  the  court  of  equity  proceeds 
to  establish  the  debt,  not  as  a  per- 
sonal judgment  against  the  debtor, 
which  may  be  sued  upon  in  any  other 
court,  but  for  a  purpose  special  to 
that  case,  in  order  to  reach  property 
which  has  been  fraudulently  conveyed, 
and  to  appropriate  it  to  the  payment 
of  the  debt.  If  the  object  of  the  pro- 
ceeding were  the  establisliment  of  a 
debt  for  all  purposes,  which  should 
become  res  adjudicata  in  other  pro- 
ceedings, and  be  suable  elsewhere  as 
an  established  claim  against  the 
debtor,  or  were  not  a  mere  incident  to 
the  chancery  jurisdiction,  I  can  un- 
derstand why  the  constitutional  pro- 
vision might  apply.  But  in  this  case 
I  see  no  more  reason  for  requiring  a 
common-law  action  to  establish  the 
debt  than  in  case  of  the  foreclosure 
of  a  mortgage,  or  the  enforcement  of  a 
mechanic's  lien,  where  proof  of  an  ex- 
isting debt  is  equally  necessary  to 
warrant  a  decree."  And  referring  to 
the  stand  taken  by  the  majority,  be 
naid:  "The  logical  consequence  of 
the  position  assumed  by  the  court  in 
this  case  is  that  it  is  compelled  to 
remand  the  case  for  a  reason  entirely 


affected  the  original  equitable 
courts  sitting  in  such  states, 

outside  the  removal  acts,  and  thus  to 
deny  to  the  removing  party  the  ben- 
efit of  the  act."  "  I  have  never  known 
of  a  federal  court  admitting  its  in- 
ability to  do  justice  between  the  par- 
ties, and  remanding  the  case  upon 
that  ground."  For  earlier  cases,  sus- 
taining the  right  to  maintain  the  bill, 
see  Flash  v,  Wilkerson,  22  Fed.  689, 
691;  Johnston  v.  Straus,  4  Hughes, 
636,  26  Fed.  57,  67 ;  Buford  v.  Holley. 
28  Fed.  680. 

The  effect  of  the  supreme  court 
decisions  is  to  compel  a  nonresident 
creditor  to  resort  to  the  state  courts 
or  else  be  placed  at  a  disadvantage  as 
compared  with  the  resident  creditors. 
Consequently  some  of  the  federal 
courts  are  inclined  to  confine  the  de 
cisions  strictly,  and  upon  any  possible 
ground  of  distinction  to  allow  the 
bill.  Thus,  in  Darragh  v.  H.  Wetter 
Mfg.  Co.,  78  Fed.  7,  23  C.  C.  A.  609, 
a  bill  by  a  simple  contract  creditor  to 
wind  up  a  corporation  was  allowed, 
under  a  statute  of  Arkansas.  In  the 
well-considered  case  of  Jones  v.  Mu- 
tual Fidelity  Co.,  123  Fed.  506  (Brad- 
ford, D.  J.),  jurisdiction  was  enter- 
tained, at  the  suit  of  simple  contract 
creditors,  of  a  bill  under  the  Delaware 
statute  for  the  appointment  of  a  re- 
ceiver to  administer  the  afTairs  of  an 
insolvent  corporation.  It  was  held 
(p.  524),  that  the  statute  "created  a 
substantial  right  of  a  purely  equitable 
nature,  and  a  purely  equitable  pro- 
cedure to  enforce  it,"  and  that  the 
pursuit  of  and  exhaustion  of  the  legal 
remedy  by  an  application  of  the  as- 
sets of  the  insolvent  corporation  to 
final  process  at  law  would  be  destrue- 
tive  of  the  right  conferred  by  tho 
statute.  The  decisions  in  Scott  v. 
Neely,  140  U.  S.  106,  11  Sup.  Ct.  712, 


507 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


294 


iior  interfered  with  their  power  to  entertain  a  suit  for  ad- 
ministration in  a  proper  ease.^'' 

§  294.   Third  Principle :    Extent. —  The  third  principle  re- 
lates to  the  extent  of  the  jurisdiction.    While  the  equitable 

2  Pratt  V.  Northani,  5  Mason,  95,  105,  per  Story,  J. 


.35  L.  ed.  358,  and  Gates  v.  Allen,  149 
U.  S.  451,  13  Sup.  Ct.  977,  37  L.  ed. 
804,  and  dictum  in  Hoi]  ins  v.  Brier- 
field  Coal  &  Iron  Co.,  150  U.  S.  371, 
14  Sup.  Ct.  127,  37  L.  ed.  1113,  were 
interpreted  as  referring  only  to  cases 
where  the  complainants  pursue,  ab 
initio,  a  purely  equitable  remedy  for 
purpose  merely  of  removing  "  some 
obstacle  or  difficulty  in  the  way  of 
the  due  and  beneficial  execution  of  the 
linal  process."  In  Hudson  v.  Wood, 
119  Fed.  764,  it  was  held  that  a  cred- 
itor's bill  brought  by  a  simple  con- 
tract creditor  may  be  retained  for  a 
discovery  and  for  the  establishment  of 
"  the  right  to  an  equitable  lien  ( '  equi- 
table levy,'  as  it  is  sometimes  called) 
upon  any  indebtedness  of  his  to  the 
judgment  debtors,  such  lien  to  become 
eflFective  and  to  be  enforced  when  such 
indebtedness,  if  denied,  shall  have 
been  ascertained  in  an  action  at  law." 
This  rule  at  least  has  the  merit  of 
protecting  the  party  who  resorts  lo 
the  federal  courts  from  being  post- 
poned to  those  who  resort  to  the 
state  courts.  By  the  laws  of  South 
Dakota,  a  fraudulent  assignment  acts 
as  a  trust  for  the  benefit  of  all  the 
creditors.  Under  this  legislation  a 
federal  court  has  allowed  a  simple 
contract  creditor  to  sue  to  enforce  the 
trust:  Wyman  v.  Mathews,  53  Fed. 
678. 

Where  a  judgment  would  be  use- 
less and  the  debt  has  been  admitted, 
the  bill  has  been  sustained.  Thus,  in 
Talley  v.  Curtain,  54  Fed.  43,  8  U.  S. 
App.  347,  the  debtor  made  a  general 
assignment,  in  which  complainant's 
■debt    was    recognized.      It    was    held 


that  complainant,  although  he  had 
not  established  his  claim  at  law, 
might  maintain  a  bill  to  set  aside  the 
assignment. 

(b)  Jurisdiction  over  Administration 
of  Estates  of  Decedents. —  This  origi- 
nal jurisdiction  of  courts  of  equity 
in  the  administration  of  estates  has 
been  exercised  by  the  United  States 
courts  in  a  very  great  number  of 
cases.  "  As  a  part  of  the  ancient 
and  original  jurisdiction  of  courts 
of  equity,  it  is  vested,  by  the 
constitution  of  the  United  States, 
and  the  laws  of  Congress  in  pursu- 
ance thereof,  in  the  federal  courts,  to 
be  administered  by  the  circuit  courts 
in  controversies  arising  between  citi- 
zens of  different  states.  It  is  the  fa- 
miliar and  well-settled  doctrine  of 
this  court  that  this  jurisdiction  is 
independent  of  that  conferred  by  the 
states  upon  their  own  courts,  and 
cannot  be  affected  by  any  legislation 
except  that  of  the  United  States. 
.  .  .  The  only  qualification  in  the 
application  of  this  principle  is  that 
the  courts  of  the  United  States,  in 
the  exercise  of  their  jurisdiction  over 
the  parties,  cannot  seize  or  control 
property  while  in  the  custody  of  a 
court  of  the  state."  Borer  v.  Chap- 
man, 119  U.  S.  587,  600,  7  S.  Ct.  342, 
348.  See,  in  addition  to  the  cases 
cited  infra,  in  this  note.  Green's 
Adm'r  v.  Creighton,  23  How.  90,  105, 
16  L.  ed.  419,  423;  PajTie  v.  Hook, 
7  Wall.  425,  430,  19  L.  ed.  2G2  (a 
leading  case)  ;  Hess  v.  Reynolds,  113 
U.  S.  78,  5  Sup.  Ct.  378;  Arrow- 
smith  V.  Gleason,  129  U.  S.  86,  98, 
100,   9   Sup.   Ct.   237,   241  i    Clark   v. 


§  294 


EQUITY   JURISPRUDENCE. 


508' 


jurisdiction  of  the  national  courts  is  derived  wholly  from 
the  United  States  constitution  and  statutes,  it  is  identical 
or  equivalent  in  extent  with  that  possessed  by  the  English 


Bever,  139  U.  S.  96,  103,  11  Sup.  Ct. 
468,  470;  Johnson  v.  Powers,  139 
U.  S.  156,  157,  11  Sup.  Ct.  525;  Lau- 
rence V.  Nelson,  143  U.  S.  224,  12 
Sup.  Ct.  440,  443;  Hayes  v.  Pratt, 
147  U.  S.  557,  570,  13  Sup.  Ct.  503, 
507;  Ball  v.  Tompkins,  41  Fed.  486, 
489  (a  very  clear  statement)  ; 
Semmes  v.  Whitney,  50  Fed.  606; 
Comstock  V.  Herron,  55  Fed.  803, 
811,  6  U.  S.  App,  626;  Martin  v. 
Fort,  83  Fed.  19,  23,  54  U.  S.  App. 
325;  Davis  v.  Davis,  89  Fed.  532, 
537;  Hampton  Lumber  Co.  v.  Ward, 
95  Fed.  3;  Hale  v.  Tyler,  115  Fed. 
833   (a  most  instructive  opinion). 

The  jurisdiction  does  not,  however, 
extend  to  matters  which  were  within 
the  exclusive  cognizance  of  the  Eng- 
lish ecclesiastical  courts,  such  as  the 
probate  of  wills,  the  appointment  of 
administrators,  or  the  confirmation 
of  executors.  Ball  v.  Tompkins,  41 
Fed.  489;  Oakley  v.  Taylor,  64  Fed. 
245,  246. 

The  jurisdiction  has  been  exercised 
in  the  following  cases,  among  many 
others:  Suits  by  creditors  of  the 
decedent  to  establish  their  claims: 
Hagan  v.  Walker,  14  How.  29,  33; 
Green's  Adni'rs  v.  Creighton,  23  How. 
90;  Hess  v.  Reynolds,  113  U.  S.  78, 
5  Sup.  Ct.  378;  Borer  v.  Chapman, 
119  U.  S.  587,  600,  7  Sup.  Ct.  342, 
348,  1  McCrary,  50,  51,  1  Fed.  274; 
Clark  V.  Bcver,  139  U.  S.  96,  103,  11 
Sup.  Ct.  468,  470  (to  enforce  de- 
ceased's liability  as  stockholder)  ; 
Covington  v.  Burncs,  1  Dill.  17,  Fed. 
Cas.  No.  3,291;  Fiske  v.  Gould,  11 
BisH.  297,  12  Fed.  372,  374  (to  reach 
partnership  assets  in  hands  of  repre- 
Bcntatives)  ;  Terry  v.  Bank  of  Cape 
Fear,  20  Fed.  773,  775;  Wickham  v. 
Hull,  60  Fed.  320,  330    (to  establish 


claim  against  estate  in  possession  of 
state  probate  court,  but  not  to  en- 
force the  same)  ;  Hale  v.  Tyler,  115 
Fed.  833  (to  set  aside  a  fraudulent 
conveyance  by  decedent). 

The  jurisdiction  of  the  federal 
court  in  such  cases  cannot  be  ousted 
or  impaired  by  any  provision  of  a, 
state  law  requiring  creditors  to  ap- 
pear before  a  state  court  and  present 
their  claims  within  a  limited  time: 
Chewett  v.  Moran,  17  Fed.  820  (bill 
to  subject  real  estate  in  the  hands 
of  heirs  to  the  payment  of  debts,  af- 
ter administration  has  been  closed)  ; 
Johnston  v.  Roe,  1  McCrary,  162,  I 
Fed.  692  (same)  ;  Hartman  v.  Fish- 
beck,  18  Fed.  295,  and  note;  Heaton 
V.  Thatcher,  59  Fed.  731, 

See,  to  the  effect  that  jurisdiction 
will  not  be  taken  to  establish  a  purely 
legal  demand  in  equity  nn  the  mere 
ground  that  the  demand  is  against 
tlie  estate  of  a  deceased  person. 
Walker  v.  Brown,  63  Fed.  204,  20S- 
212;  Bedford  Quarries  Co.  v,  Thom- 
linson,  95  Fed.  208,  36  C.  C,  A.  272;. 
Thiel  Detective  Service  Co.  v.  Mc- 
Clure,  130  Fed.  55.  So,  the  petition 
of  an  illegitimate  child  to  establish 
his  statutory  right  to  share  in  the- 
estate  presents  a  legal,  not  an  equi- 
tnble,  issue;  In  re  Foley,  76  Fed„ 
390. 

Suit  for  recovery  of  a  legacy : 
Mayor  v,  Foulkrod,  4  Wash.  C,  C. 
356,  Fed.  Cas.  No.  9,341  (though  ac- 
tion  at  law  provided  by  state  stat- 
ute) ;  Pulliam  v.  Pulliam,  10  Fed. 
23,  30  (althoTigh  executor's  acoounta 
have  been  settled  in  state  court)  ; 
Brendel  v.  Charch,  82  Fed.  202,  203., 
Suit  to  set  aside  a  frauiluloiit  dis- 
tribution of  the  estate:  Sullivmi  v. 
Andoe,    4   Hughes,    299,    6    Fed.    04 1„ 


:509 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§  294 


high  court  of  chancery  at  the  time  of  the  Revolution.  The 
judicial  functions  and  powers  of  the  English  court  of  chan- 
cery are  held  to  have  been  conferred  en  masse  upon  the 


650;  as,  where  a  distributee  is  fraud- 
ulently induced  to  accept  less  than 
his  share  of  the  estate;  Payne  v. 
Hook,  7  Wall.  430;  Costello  v.  Cos- 
tello,  4  McCrary,  547,  14  Fed.  207, 
209  (suit  to  remove  cloud  from  title 
to  personal  property)  ;  Cowen  v. 
Adams,  78  Fed.  536,  543,  47  U.  S. 
App.  676;  or  where  an  administra- 
tor, by  fraud  and  connivance,  gives 
an  unwarranted  preference  to  the 
claims  of  certain  creditors  to  the  ex- 
clusion of  others;  Dodd  v.  Ghiselin, 
27  Fed.  405,  410,  by  Brewer,  J.; 
or  to  surcharge  and  correct  a  settle- 
ment of  accounts  by  administrators 
which  has  been  confirmed  by  decree 
of  the  probate  court;  Bertha  L.  &  M. 
Co.  V.  Vaughan,  88  Fed.  566,  571. 
Suit  against  an  executor  de  son 
tort,  for  accounting  and  distribution, 
where  there  has  been  no  administra- 
t'lon  upon  the  estate;  Rich  v.  Bray, 
37  Fed.  273,  2  L.  R.  A.  225.  Suit 
for  the  construction  of  a  probated 
will:  Toms  v.  Owen,  52  Fed.  417; 
Colton  V.  Colton,  127  U.  S.  301,  308, 
8  Sup.  Ct.  1164;  Wood  v.  Paine,  66 
Fed.  807.  Suit  by  ward  against 
guardian,  setting  aside  orders  of  pro- 
bate court:  Hull  v.  Dills,  19  Fed. 
658;  Arrowsmith  v.  Gleason,  129 
U.  S.  86,  98,  100,  9  Sup.  Ct.  237,  241. 
No  Original  Probate  Jurisdiction. — 
"  It  has  never  been  a  part  of  the 
fimction  of  courts  of  law  or  equity, 
by  a  proceeding  having  that  especial 
purpose  in  view,  either  to  establish 
or  reject  wills.  This  jurisdiction  was 
committed  exclusively  to  the  ecclesi- 
astical courts  in  England,  for  which 
are  substituted,  with  a  jurisdiction 
extending  to  probate  of  wills  of  real 
estate,  by  the  several   states  of  the 


Union,  courts  of  probate,  variously 
styled  probate,  surrogate,  or  orphans' 
courts,  not,  however,  exercising  com- 
mon-law or  chancery  cognizance;  and 
these  courts  have  always  enjoyed  this 
jurisdiction  exclusive  of  either  courts 
of  common  law  or  equity,  tending  a 
field  of  business  from  which  other 
courts  were  excluded  by  the  very  na- 
ture of  their  organization  and  pro- 
cedure." Oakley  v.  Taylor,  64  Fed. 
246.  The  United  States  courts  have 
no  jurisdiction,  by  virtue  of  their 
general  equity  powers,  to  establisli  a 
will :  In  re  Frazer,  Fed.  Cas.  No. 
5,008;  In  re  Cilley,  58  Fed.  982,  984, 
985,  989;  Copeland  v.  Bruning,  72 
Fed.  5,  8 ;  In  re  Aspinwall's  Estate, 
83  Fed.  851;  Cilley  v.  Patten,  62 
Fed.  498:  nor  to  set  aside  a  will  or 
the  probate  thereof:  In  re  Broder- 
ick's  Will,  21  Wall.  503,  22  L.  ed. 
599 ;  Foiiverne  v.  New  Orleans,  18 
How.  470,  15  L.  ed.  399;  Ellis  v. 
Davis,  109  U.  S.  498,  3  Sup.  Ct.  327, 
335,  affirming  4  Woods,  11,  Fed.  Cas. 
No.  4,402;  Oakley  v.  Taylor,  64  Fed. 
245;  Carran  v.  O'Calligan,  (C.  C. 
A.),  125  Fed.  657,  reviewing  the 
cases;  post,  §  913;  contra,  O'Calla- 
ghan  V.  O'Brien,  116  Fed.  934;  nor 
to  set  aside  letters  of  administration: 
Simmons  v.  Saul.  138  U.  S.  439,  454, 
460,  11  Sup.  Ct.  369,  376. 

When,  however,  jurisdiction  to  set 
aside  wills  or  the  probate  thereof  has 
been  vested  by  state  statute  in  courts 
of  equity,  the  federal  court  of  equity, 
sitting  in  the  state  Avhere  such  stat- 
ute exists,  will  also  entertain  such 
jurisdiction  in  a  case  between  proper 
parties:  Gaines  v.  Fuentes,  92  U.  S. 
10,  21,  23  L.  ed.  528;  Williams  v. 
Crabb,  117  Fed.  193,  59  L.  R.  A.  425, 
reviewing   the    authorities;    Richard- 


294 


EQUITY    JURISPRUDENCE. 


5ia 


(national  judiciary;  but  not  the  peculiar  administrative 
functions  held  by  the  chancellor  as  representative  of  the- 
crown  in  its  character  of  parens  patrice.    These  latter  func- 


Bon  V.  Green,  61  Fed.  423,  429,  15 
U.  S.  App.  488,  9  C.  C.  A.  565,  159 
U.  S.  264,  15  Sup.  Ct.  1042;  but  see 
Eeed  v.  Reed,  31  Fed.  49,  53;  Oakley 
V.  Taylor,  64  Fed.  245  (holding  that 
the  statute  in  question  provided 
merely  a  remedy  by  appeal,  which 
could  not  be  enforced  by  a  federal 
court)  ;  Sawyer  v.  White,  122  Fed. 
223  (statutory  remedy  of  a  legal  na- 
ture, enforced  by  federal  court  on 
its  law  side).  So  state  statutes 
which  treat  a  proceeding  to  estab- 
lish a  will,  in  certain  cases,  as  one 
of  equity  and  not  of  probate  jurisdic- 
tion, may  be  enforced  in  a  federal 
court  of  equity;  see  South  worth  v. 
Adams,  9  Biss.  523,  524,  4  Fed.  1 
(proceeding  to  establish  a  lost  will)  ; 
Brodhead  v.  Shoemaker,  44  Fed.  518, 
II  L.  R.  A.  569  (proceeding  to  pro- 
bate will  in  "  solemn  form  " ) . 

When  Estate  is  in  Custody  of  the 
State  Court. —  The  limitation  of  the 
jurisdiction  in  administration  mat- 
ters consequent  upon  the  possession 
of  the  estate  by  the  probate  court 
presents  some  questions  of  difficulty. 
In  Byers  v.  McAuley,  149  U.  S.  616- 
623,  13  Sup.  Ct.  908-911,  many  of 
the  previous  cases  in  the  supreme 
court  are  reviewed  by  Mr.  Justice 
Brewer,  who  says,  in  part :  "  In  or- 
der to  pave  tlie  way  to  a  clear  under- 
standing of  this  question,  it  may  be 
well  to  state  some  general  proposi- 
tions which  have  become  fully  set- 
tled by  the  decisions  of  this  court; 
and,  first,  it  is  a  rule  of  general  ap- 
plication that,  where  property  is  in 
the  actual  possession  of  one  court  of 
compftont  Jurisdiction,  such  posses- 
sion cannot  be  disturbed  by  process 
out  of  finother  court.  .  .  .  Sec- 
ondly, an  administrator  appointed  by 


a  stat6  court  is  an  officer  of  that 
court.  His  possession  of  the  dece- 
dent's property  is  a  possession  taken- 
in  obedience  to  the  orders  of  that 
court.  It  is  the  possession  of  the 
court,  and  it  is  a  possession  which 
cannot  be  disturbed  by  any  other 
court."  The  result  of  the  discussion 
is  thus  summed  up  by  the  learned 
justice:  "A  citizen  of  another  state- 
may  establish  a  debt  against  the  es- 
tate (Yonley  v.  Lavender,  21  WalL 
276;  Hess  v.  Reynolds,  113  U.  S.  73,. 
5  Sup.  Ct.  377)  ;  but  the  debt  thus- 
established  must  take  its  place  and 
share  of  the  estate  as  administered 
by  the  probate  court,  and  it  cannot 
be  enforced  by  process  directly 
against  the  property  of  the  decedent 
(Yonley  v.  Lavender,  supra).  In 
like  manner,  a  distributee,  citizen  of 
another  state,  may  establish  his  right 
to  a  share  in  the  estate,  and  enforce- 
such  adjudication  against  the  admin- 
istrator personally,  or  his  sureties- 
(Payne  v.  Hook,  7  Wall.  425),  or 
against  any  other  parties  subject  to 
liability  (Borer  v.  Chapman,  119 
U.  S.  587,  7  Sup.  Ct.  342),  or  in 
any  other  way  which  does  not  dis- 
turb the  possession  of  the  properly 
by  the  state  courts." 

The  following  acts  have  been  held 
to  constitute  an  interference  on  the 
part  of  the  federal  court  with  prop- 
erty in  the  possession  of  the  probate 
court:  An  execution  levied  on  such 
property;  Williams  v.  Benedict,  8 
How.  107,  112;  Yonley  v.  Lavender, 
21  Wall.  276;  Wickham  v.  Hull,  60- 
Fed.  326,  330;  appointing  a  receiver 
to  displace  the  executor;  Haines  v. 
Carpenter,  1  Woods,  269,  270,  Fed. 
Cas.  No.  5,905;  Lant  v.  Manley,  71 
Fed.  7,  12;  Johnson  v.  Ford,  109  Fed. 


511 


JUDICIAL    INTEUl^RETATION    OF    JUIHSDICTION. 


294 


tions  of  tlie  English  cliancellor  have  not  been  granted  to  the 
United  States  courts,  but  are  given  to  the  several  states, 
and  are  exercised  either  by  the  state  legislatures  or  by  the 


501 ;  adjudging  that  certain  claims 
Bhould  be  placed  on  equality  with 
others  which,  undei*  the  state  law, 
were  entitled  to  a  preference;  Dodd 
V,  Ghisclin,  27  Fed,  405,  407-410 
( Brewer,  J. )  ;  setting  aside  a  sale 
of  trust  property  comprising  the  re- 
siduary estate,  while  the  estate  is  in 
the  process  of  administration,  and 
before  the  executors  have  rendered 
any  account;  Jordan  v.  Taylor,  98 
Fed.  643.  See  also  In  re  Foley,  80 
Fed.   951. 

The  following  acts  have  been  held 
not  to  constitute  an  interference: 
Establishing  a  debt  against  the  es- 
tate: Hess  V.  Reynolds,  113  U.  S. 
78,  5  Sup.  Ct.  378;  Black  v.  Scott, 
9  Fed.  186,  191;  Wickham  v.  Hull, 
60  Fed.  326,  330.  In  Hess  v.  Rey- 
nolds the  court  says,  by  Miller,  J.: 
"  It  may  be  convenient  that  all  debts 
to  be  paid  out  of  the  assets  of  a  de- 
ceased man's  estate  shall  be  estab- 
lished in  the  court  to  which  the  law 
of  the  domicile  has  confided  the  gen- 
eral administration  of  these  assets. 
And  the  courts  of  the  United  States 
will  pay  respect  to  this  principle  in 
the  execution  of  the  process  enforc- 
ing their  judgments  out  of  these  as- 
sets, so  far  as  the  demands  of  jus- 
tice, require.  But  neither  the  princi- 
ple of  convenience  nor  the  statutes  of 
a  state  can  deprive  them  of  juris- 
diction to  hear  and  determine  a  con- 
troversy between  citizens  of  differ- 
ent states  when  such  a  controversy 
is  distinctly  presented,  because  the 
judgment  may  affect  the  administra- 
tion or  distribution  in  another  forum 
of  the  assets  of  the  decedent's  es- 
tate." It  appears  that  a  lien  upon 
specific  property  entitling  the  lien- 
holder  to  a  special  remedy  is  not  im- 


paired by  the  death  of  the  owner, 
and  such  special  remedy  may  be  ap- 
plied in  proceedings  against  his  ex- 
ecutor or  administrator  in  the  fed- 
eral courts:  German  Sav.  &  Loan 
Soc.  V.  Cannon,  65  Fed.  542,  545; 
Erwin  v.  Lowry,  7  How.  172,  ISl; 
and  see  Lant  v.  Manley,  75  Fed.  627, 
634,  43  U.  S.  App.  623.  When  suits 
by  distributees  do  not  constitute  an 
interference :  see  Payne  v.  Hook, 
supra;  Byers  v.  McAulej',  supra; 
Brendel  v.  Charch,  82  Fed.  262. 
Establishing  a  lien  on  the  interests 
of  heirs  at  law  in  an  estate  in  the 
hands  of  an  administrator:  Inger- 
soll  V.  Coram,  127  Fed.  418. 

In  the  following  cases  the  property 
was  held  not  to  be  in  the  custody  of 
the  probate  court,  and  the  limitation 
of  the  jurisdiction  of  the  federal 
court,  therefore,  did  not  apply: 
Herschberger  v.  Blewett,  55  Fed. 
170;  Briggs  v.  Stroud,  58  Fed.  717, 
720;  where  the  assets  have  been  dis- 
tributed; Borer  v.  Chapman,  119 
U.  S.  587,  600,  7  Sup.  Ct.  342,  343; 
where  they  are  in  the  hands  of  the 
committee  of  a  lunatic;  Sullivan  v. 
Andoe,  4  Hughes,  299,  6  Fed.  641, 
650;  or  of  an  executor  in  his  ca- 
pacity as  trustee;  Ball  v.  Tompkins, 
41  Fed.  489;  where  real  property 
fraudulently  conveyed  by  the  dece- 
dent is  sought  to  be  reached,  and  the 
probate  court,  though  empowered  by 
statute  to  take  possession  of  it,  has 
not  done  so;  Hale  v.  Tyler,  115  Fed. 
833  (examining  the  cases  with  great 
thoroughness).  In  Ball  v.  Tompkins, 
supra,  the  court  says,  at  page  490: 
"  The  possession  contemplated  as  suffi- 
cient to  make  it  exclusive  is  that 
which  the  court  by  its  process,  or 
some  similar  mode,  has,  either  for  the 


§    295  EQUITY    JURISPRUDENCE.  512 

state  tribunals.  The  United  States  supreme  court  has  fre- 
quently laid  down  and  acted  upon  this  principle  in  deciding 
cases  brought  for  the  purpose  of  enforcing  charitable 
trusts/  ^ 

§  295.  Fourth  Principle:  Inadequacy  of  Legal  Remedies. — 
The  fourth  principle  also  relates  to  the  extent  of  the  equi- 
table jurisdiction,  as  that  is  affected  by  the  most  important 
provision  of  the  statute.^    In  the  judicial  interpretation  of 

§  294,  iBodley  v.  Taylor,  5  Cranch,  191,  221,  222;  Fontain  v.  Ravenel,  17 
How.  369,  384;  Canal  Co.  v.  Gordon,  6  Wall.  561,  568;  Case  of  Broderick's  Will, 
21  Wall.  503;  Noonan  v.  Lee,  2  Black,  499,  509;  Loring  v.  Marsh,  2  Cliflf. 
469,  493;  Livingston  v.  Van  Ingen,  1  Paine,  45.  In  Fontain  v.  Ravenel, 
17  How.  369,  a  suit  to  establish  a  charitable  trust,  ISIi-.  Justice  McLean 
Btated  the  doctrine  as  follows :  "  The  courts  of  the  United  States  cannot 
exercise  any  equity  powers  except  those  conferred  by  acts  of  Congress,  and 
those  judicial  powers  which  the  high  court  of  chancery  in  England,  acting 
under  its  judicial  capacity  as  a  court  of  equity,  possessed  and  exercised  at 
the  time  of  the  formation  of  the  constitution  of  the  United  States.  Powers 
not  judicial,  exercised  by  the  chancellor  merely  as  the  representative  of 
the  sovereign,  and  by  virtue  of  the  king's  prerogative  as  parens  patrice,  are 
not  possessed  by  the  United  States  circuit  courts."  In  Noonan  v.  Lee,  2 
Black,  499,  509,  Swayne,  J.,  said:  "Equity  jurisdiction  of  the  courts  of  the 
United  States  is  derived  from  the  constitution  and  laws  of  the  United  States. 
Their  powers  and  rules  of  decision  are  the  same  in  all  the  states.  Their 
practice  is  regiUated  by  themselves  and  by  rules  established  by  the  supreme 
court.  In  all  these  respects  they  are  unaffected  by  state  legislation ;  "  citing 
Neves  v.  Scott,  13  How.  270;  Boyle  v.  Turner,  6  Pet.  658;  Robinson  v. 
Campbell,  3  Wheat.  323. 

§  295,  1 1  refer  to  the  United  States  Revised  Statutes,  section  723,  being  the 
same  as  section  16  of  the  Judiciary  Act  of  1789,  quoted  ante,  in  note  under 
section  312. 

direct  purpose  of  the  proceeding,  or  over  such  a  matter.     The  result  may 

for  some  otlier  purpose   ancillary  to  be  a  judgment  which  will  establish  a 

the  main   object,  drawn   into   its  do-  right,  but  the  court  has  not  had  any 

minion  and  custody  some  thing.   That  possession." 

thing  may  be  corporeal  or  incorpo-  (a)  See  also  Mormon  Church  v. 
real,  —  a  substance  or  a  mere  right.  United  States,  136  U.  S.  1;  King 
But  a  controversy,  a  question,  an  in-  v.  McLean  Asj'lum  of  Massachusetts 
quiry,  is  not  such  a  tiling.  Those  may  General  Hospital,  64  Fed.  331,  352, 
bp  the  subject-matter  of  jurisdiction  21  U.  S.  App.  481  (C.  C.  A.),  26 
in  a  pending  cause,  which  often  pro-  L.  R.  A.  795.  In  absence  of  statute, 
?('.('<\ft,  from  the  bcgiiming  to  the  a  bill  by  the  United  States  to  cancel 
judgment,  without  the  court's  having  a  patent  for  fraud  will  not  be  enter- 
taken  actual  dominion  of  anything.  taiiicd,  since  in  England  the  power 
But  there  is  no  exclusive  juri.sdiction  to  cancel  a  patent  was  in  the  nature 


513  JUDICIAL    INTERPEETATION    OF    JURISDICTION.  §  296 

this  clause,  it  has  been  well  settled  that  the  section  of  the 
statute  is  merely  declaratory  of  a  familiar  doctrine  belong- 
ing to  the  general  system  of  equity  jurisdiction  and  juris- 
prudence. It  does  not  take  away  or  abridge  the  jurisdiction 
which  is  affirmatively  granted,  nor  deprive  the  United 
States  courts  of  any  part  of  the  field  of  powers  occupied 
by  the  English  court  of  chancery  so  far  as  the  functions  of 
that  tribunal  are  judicial.  In  short,  this  section  does  not 
substantially  affect  the  equitable  jurisdiction  of  the  na- 
tional courts ;  their  powers  would  have  been  the  same,  and 
subject  to  the  same  limits,  if  the  provision  had  not  been 
enacted.^ 

§  296.  Illustrations. —  The  four  foregoing  principles  may 
be  justly  regarded,  I  think,  as  the  very  foundations  of  the 
equitable  jurisdiction  of  the  United  States  courts.  They 
give  it  whatever  peculiar  character  it  possesses  growing  out 
of  the  double  organization  of  the  national  and  state  govern- 
ments, and  they  clearly  distinguish  it  from  the  jurisdiction 
possessed  by  any  state  tribunals.     In  the  practical  adminis- 

2Boyce's  Executors  v.  Grundy,  3  Pet.  210,  215;  Baker  v.  Biddle,  1  Bald. 
394,  403;  Barber  v.  Barber,  21  How,  5S2,  591;  Hunt  v.  Danforth's  Ex'rs, 
2  Curt.  592,  003;  Bunce  v.  Gallagher,  5  Blatch.  481,  487.  The  doctrine  of 
the  text  was  clearly  stated  in  Boyce's  Executors  v.  Grundy,  3  Pet.  210,  215, 
by  Johnson,  J.,  and  has  been  repeated  by  the  subsequent  cases :  "  This  court 
has  been  often  called  upon  to  consider  section  16  of  the  Judiciary  Act  of 
1789,  and  as  often,  either  expressly  or  by  the  course  of  its  decisions,  has 
held  that  it  is  merely  declaratory,  making  no  alteration  whatsoever  in  the 
rules  of  equity  on  the  subject  of  legal  remedy.  It  is  not  enough  that  there 
is  a  remedy  at  law;  it  must  be  plain  and  adequate,  or  in  other  words,  as 
practical  and  efficient  to  the  ends  of  justice  and  its  prompt  administration 
as  the  remedy  in  equity."  a 

of  a  royal  prerogative;  United  Statea  adequacy  of  the  remedy  at  law,  is 
V.  American  Bell  Telephone  Co.,  32  the  remedy  which  existed  when  the 
Fed.  591,  605,  606.  Judiciary  Act  of  1789  was  adopted, 
(a)  In  the  recent  case  of  McCone-  unless  subsequently  changed  by  Con- 
bay  V.  Wright,  121  U.  S.  20,  the  su-  gress,  and  is  not  the  existing  remedy 
preme  court  of  the  United  States  in  a  state  or  territory  by  virtue  of 
again  laid  down  the  rule  that  the  local  legislation.  See  also  Payne  v. 
test  of  the  equity  jurisdiction  of  the  Kansas  &  A.  Val.  R.  R.  Co.,  46  Fed. 
courts  of  the  United  States,  so  far  546. 
as  the  same  was   determined  by  the 

Vol.  1  —  33 


§   296  EQUITY   JURISPEUDENCE.  514 

tration  of  their  equitable  powers,  the  national  judiciary  have 
constantly  affirmed  and  steadily  adhered  to  the  doctrine  in 
its  negative  form,  that  the  equitable  jurisdiction  does  not 
exist,  or  will  not  be  exercised,  in  any  case  or  under  any  cir- 
cumstances where  there  is  an  adequate,  complete,  and  cer- 
tain remedy  at  law,  sufficient  to  meet  all  the  demands  of 
justice.^"  I  have  collected  and  placed  in  the  foot-note  a 
number  of  examples  which  will  sufficiently  illustrate  the  uni- 
formity and  consistency  with  which  the  United  States- 
judiciary  have  applied  this  negative  rule  under  a  great 
variety  of  circumstances.^ 

1  Thompson  v.  Railroad  Co.,  6  Wall.  134,  137;  Parker  v.  Winnipiseogee,  etc., 
Co.,  2  Black,  545,  550;  Knox  v.  Smith,  4  How.  298,  316;  Wright  v.  Ellison, 
1  Wall.  16,  22;  Oelrichs  v.  Spain,  15  Wall.  211;  Lewis  v.  Cocks,  23  Wall. 
466,  470;  Hungerford  v.  Sigerson,  20  How.  156;  Hipp  v.  Babin,  19  How.  271; 
Baker  v.  Biddle,  1  Bald.  394,  405;  Blakeley  v.  Biscoe,  1  Hempst.  114,  115; 
United  States  v.  Meyers,  2  Brock.  516;  Andrews  v.  Solomon,  1  Pet.  C.  C. 
356;  Shapley  v.  Rangeley,  1  Wood.  &  M.  213,  216,  2  Ware,  242;  Pierpont  v. 
Fowle,  2  Wood.  &  M.  23;  Foster  v.  Swasey,  2  Wood.  &  M.  217. 

2  It  has  thus  been  decided  that  the  jurisdiction,  if  concurrent,  does  not 
exist,  and  if  exclusive,  will  not  be  exercised,  in  the  following  cases:  Not  to 
try  the  mere  legal  title  to  lands,  or  to  recover  possession  of  lands  when  only 
the  legal  title  is  disputed:  Mezes  v.  Greer,  1  McAll.  401,  402;  Hipp  v. 
Babin,  19  How.  271;  Lewis  v.  Cocks,  23  Wall.  466,  470;  »»  nor  for  a  breach 
of  a  simple  contract  of  agency:  Blakeley  v.  Biscoe,  1  Hempst.  114,  115;  nor 
of  suit  by  principal  against  his  agent  to  recover  for  losses  occasioned  by  the 
latter's  negligence  or  misconduct:  Vose  v.  Philbrook,  3  Story,  335,  344,  345 j 
nor  of  suit  by  insurance  companies  to  cancel  a  fire  policy,  and  enjoin  action 
at  law  thereon,  on  the  ground  of  fraudulent  representations  in  procuring  the 
same,  where  the  suit  was  brouglit  after  a  loss:  Home  Ins.  Co.  v.  Stanch- 
field,  1  Dill.  424,  429,  431-438,  2  Abb.  1;  c  whether  the  suit  for  a  discovery 

(a)  See  also  the  following  leading  pany,  has  an  adequate  remedy  at  law 

cases:      Insurance   Co.   v.   Bailey,    13  by  defense  to  an  action  on  a  policy. 

Wall.  616,  620,  20  L.  ed.  501;  Grand  and  a  right  to  a  removal  of  the  ac- 

Chute  V.   Winogar,   15   Wall.  373,   21  tion  from  a  state  to  a  federal  court 

L.   ed.   170;    Buzard  v.   Houston,   119  by  reason  of  diverse  citizenship,  the 

U.   S.  347,  351,  4  Sup.   Ct.   249,  30  fact  that  such  removal  may  subject 

L.   ed.   451;    Whitehead   v.   Shattuck,  it  to  a  revocation  of  its  license  to  do 

138  U.   S.   151,   11   Sup.   Ct.   276,  34  business  in  the  state  does  not  render 

L.  ed.  873.  its  legal  remedy  so  inadequate  as  to 

(*»)  See  also  Killian  v.  Ebbinghaus,  afford   an   occasion   for   the   exercise, 

110  U.  S.  508.  by  a  federal  court,  of  equitable  juris- 

(«•)  Sec      also      Insurance      Co.      v.  did  ion    to   cancel    the    policy;    Cable 

r.uil.y,   13  Wall.   010,  20  L.  ed.  501.  v.  United  States  Life  Ins.  Co.  (U.S.), 

IX   A    defcuduut,   an    iuuurance    com-  24  Sup.  Ct.  74. 


515  JUDICIAL,    INTERPRETATION    OF    JURISDICTION.  §  297 

§  297.  Effect  of  State  Laws. —  On  the  other  hand,  the 
affirmative  form  of  the  rule  has  also  been  uniformly  asserted 
and  maintained,  that  the  equitable  jurisdiction  exists  and 
will  be  exercised  in  all  cases,  and  under  all  circumstances, 
where  the  remedy  at  law  is  not  adequate,  complete,  and  cer- 
tain, so  as  to  meet  all  the  requirements  of  justice.  That 
there  is  a  legal  remedy  is  not  enough;  such  remedy,  in 
order  to  oust  or  prevent  the  equitable  jurisdiction,  must  be 
in  all  respects  as  satisfactory  as  the  relief  furnished  by 
a  court  of  equity.^  *    Not  intending  to  re-examine  the  ques- 

has  been  abrogated  by  statutes  making  parties  liable  to  be  called  as  witnesses 
for  tbeir  adversaries:  Home  Ins.  Co.  v.  Stanchfield,  1  Dill.  424,  429,  431-438^ 
2  Abb.  1 ;  when  suit  will  not  be  sustained  to  set  aside  a  sale  on  ground  of 
fraud:  Andrews  v.  Solomon,  1  Pet.  C.  C.  356;  Foster  v.  Swasey,  2  Wood. 
&  M.  217;  nor  to  recover  on  contract  which  has  been  entirely  performed, 
except  the  payment  of  the  money  due  thereon;  and  equity  has  no  jurisdiction 
to  compel  municipal  officers  to  levy  a  tax  in  order  to  provide  a  fund  for  the 
payment  of  such  a  contract:  Heine  v.  Loan  Commissioners,  19  Wall.  655,  1 
Woods,  246;  nor  of  a  suit  brought  to  enforce  a  decree  in  equity  for  the  pay- 
ment of  money  alone:  Telford  v.  Oakley,  1  Hempst.  197;  nor  of  a  suit  to 
declare  the  future  rights  which  may  arise  under  a  will:     Cross  v.  De  Valle^ 

1  Wall.  1,  1  Cliff.  282;  nor  of  a  suit  for  a  divorce  or  for  alimony:  Barber  v. 
Barber,  21  How.  582,  584;  nor  of  a  suit  to  establish  the  probate  of  a  will,  nor 
to  set  aside  the  probate  of  a  will  on  any  ground:  Fouverne  v.  New  Orleans, 
18  How.  470,  473;  nor  of  a  suit  to  set  aside  a  will  or  the  probate  thereof,  on 
the  ground  of  forgery  or  of  fraud;  nor  to  declare  the  executor,  or  legatee,  or 
devisee  in  such  a  will  a  trustee:  Case  of  Broderick's  Will,  21  Wall.  503 j 
nor  to  maintain  the  "  proceedings  supplementary  to  execution,"  authorized 
by  a  state  code  of  procedure,  the  proper  equitable  remedy  being  a  "  creditor's 
suit":  Byrd  v.  Badger,  1  McAll.  443,  444-446;  when  the  jurisdiction  will 
not  be  exercised  in  a  case  of  private  nuisance:     Parker  v.  Winnipiseogee  Co., 

2  Black,  545,  550;  nor  to  enjoin  any  suit  pending  in  a  state  court:  Rogers 
V.  Cincinnati,  5  McLean,  337;  nor  to  enjoin  a  sheriff  under  ordinary  circum- 
stances from  levying  on  and  selling,  under  an  execution  against  a  third  party, 
any  property  in  which  the  plaintiff  is  interested,  an  action  at  law  for  dam- 
ages being  ample  remedy:  Knox  v.  Smith,  4  How.  298,  316;  nor  to  enforce  a 
forfeiture:  Horsburg  v.  Baker,  1  Pet.  232,  236;  for  limitations  upon  the 
jurisdiction  of  the  national  courts  in  enforcing  vague  and  imcertain  charities: 
See  Fontain  v.  Ravenel,  17  How.  369,  384. 

1  Pratt  v.  Northam,  5  Mason,  95,  105;  Baker  v.  Biddle,  1  Bald.  394, 
403-411;  United  States  v.  Meyers,  2  Brock.  516.  In  the  case  of  Baker  v. 
Biddle,  1  Bald.  394,  405,  Baldwin,  J.,  said:     "It  follows  that  wherever  a 

(a)  Cited,  Mann  v.  Appel,  31  Fed.  ing  this  principle:  Boyce's  Ex'rs  v. 
378,  383,  a  creditors'  bill.  See  also  Grundy,  3  Pet.  210,  215,  9  L.  ed.  127; 
the  following  leading  cases  enunciat-       Watson   v.    Sutherland,    5    Wall.    74, 


§    297  EQUITY   JURISPRUDENCE.  516 

tions  concerning  jurisdiction  which  have  been  discussed  in 
the  preceding  chapters,  I  have  merely  collected  and  placed 
in  the  foot-note  a  few  decided  cases  as  examples,  which  will 
illustrate  the  manner  in  which  the  United  States  courts  have 
applied  the  foregoing  affirmative  rule,  and  have  exercised 
their  equitable  powers  under  a  variety  of  circumstances.* 

court  of  law  is  competent  to  take  cognizance  of  a  right,  and  has  power  to 
proceed  to  a  final  judgment  which  affords  a  remedy  plain,  adequate,  and 
ncomplete,  without  the  aid  of  a  court  of  equity,  the  plaintiff  must  proceed  at 
law,  because  the  defendant  has  a  constitutional  right  of  trial  by  jury.  If 
-the  right  is  only  an  equitable  one,  or  if  the  right  being  legal,  the  remedy  is 
only  equitable,  or  both  legal  and  equitable,  partaking  of  the  character  of 
both,  and  a  court  of  law  is  unable  to  afford  a  remedy  according  to  its  old 
and  settled  proceedings  commensurate  with  the  right,  then  the  suit  for  its 
assertion  may  be  in  equity.  .  .  .  The  tests  of  the  relative  jurisdiction 
over  suits  at  law  and  in  equity  are, —  1.  The  subject-matter;  2.  The  relief; 
3.  Its  application;  4.  The  competency  of  a  court  of  law  to  afford  it."  The 
judgment  of  Mr.  Justice  Baldwin  in  this  case  is,  in  my  opinion,  one  of  the 
«,blest,  clearest,  and  most  accurate  statements  of  the  true  doctrines  concern- 
ing the  equitable  jurisdiction  to  be  found  in  the  whole  range  of  reports, 
English  and  American. 

2  The  equitable  jurisdiction  has  been  held  to  exist  and  has  been  exer- 
cised in  the  following  cases,  on  the  ground  that  the  legal  remedy  is  inade- 
quate: On  behalf  of  the  one  having  the  equitable  estate  in  land,  to  compel  a 
conveyance  to  him  of  the  legal  estate:  Bodley  v.  Taylor,  5  Cranch,  191,  221, 
222;  in  "creditors'  suits"  and  suits  similar  thereto:  Dunphy  v.  Kleinsmith, 
11  Wall.  610,  614;  Lorman  v.  Clark,  2  McLean,  568;  Bean  v.  Smith,  2  Mason, 
252,  267,  268;  in  suit  to  foreclose  a  mortgage,  even  in  a  state  where  the 
common-law  mortgage  is  not  known:  Walker  v.  Dreville,  12  Wall.  440;  in 
a  suit  to  enforce  a  lien  created  by  statute,  and  to  enforce  liens  generally: 
Canal  Co.  v.  Gordon,  6  Wall.  561,  568;  Heine  v.  Loan  Com'rs,  19  Wall. 
655,  1  Woods,  246;  to  to  remove  a  cloud  from  title:  Loring  v.  Dorner,  1 
McAU.  360,  362-365;  in  an  "administration  suit":  Pratt  v.  Northam,  5 
Mason,  95,  105;  to  enforce  charitable  trusts,  so  far  as  the  same  can  be  done 
!by  judicial  action:  Fontain  v.  Ravenel,  17  How.  369,  384;  to  regulate  and 
control  one  railroad  company  in  the  construction  of  its  tracks  across  those 
of   another    company,    where    the    state    legislation    has    not    prescribed   any 

78,   18  L.  ed.   580;    Insurance  Co.  v.  Rich  v.  Braxton,  158  U.  S.  375,  406, 

Bailey,   13  Wall.   616,  620,  20  L.  ed.  15  Sup.  Ct.  1006,  39  L.  ed.  1022. 

501;    Lewis  v.  Cocks,   23   Wall.   466,  (b)  This    note    and     paragraph    of 

470,  23  L.  ed.  70;   Drexel  v.  Berney,  the  text  are  cited   in  Hibernia   S.  & 

122  U.  S.  241,  252,  7  Sup.  Ct.   1200,  L.  Soc.  v.  London  &  Lancashire  Fire 

-^0  L.  ed.   1219;  Allen  v.  Hanks,   136  Ins.   Co.,   138   Cal.  257,  71   Pac.   334, 

U.   S.   300,   311,   10  Sup.  Ct.  961,  34  holding  that  the  enforcement  of  stat- 

L.  ed.  414;   Kilbourn  v.  Sunderland,  utory    liens    is    a    matter    of    equity 

130  U.  S.  505,  514,  9  Sup,   Ct.   594;  jurisdiction. 


517  JUDICIAL   INTERPRETATION    OF   JURISDICTION.  §  297 

In  order  to  prevent  a  misconception  of  the  foregoing  rnles- 
concerning  the  equitable  jurisdiction  of  the  national  courts, 
there  is  one  limitation  which  must  be  constantly  borne  in 
mind.  Since  the  original  jurisdiction  of  the  United  States 
courts  —  especially  of  the  circuit  courts  —  in  large  measure 
depends  upon  the  state  citizenship  of  the  litigant  parties  as 
its  sole  basis,  it  follows  that  in  some  cases  of  ordinary 
controversies  —  in  all  those  which  do  not  directly  arise 
under  statutes  of  Congress  or  provisions  of  the  United 
States  constitution  —  the  subject-matter  of  the  suit,  the 
primary  rights,  interests,  or  estates  to  be  maintained  and 
protected,  are  created  and  regulated  by  state  laws  alone> 
While,  therefore,  it  is  correctly  held  that  the  equitable 
jurisdiction  of  the  national  courts,  their  power  to  enter- 
tain and  decide  equitable  suits  and  to  grant  the  remedies 

manner:  Chicago  &  N.  W.  R.  R.  v.  Chicago  &  Pac.  R.  R.,  6  Biss.  219,  221^ 
222;  to  carry  into  full  effect  the  provisions  of  a  bankrupt  act  passed  by. 
Congress,  and  in  matters  of  accounting  generally:  Mitchell  v.  Great  Works, 
etc.,  Mfg.  Co.,  2  Story,  648 ;  in  cases  of  fraud,  misrepresentation,  and  con- 
cealment, to  give  the  relief  of  cancellation,  etc.:  Jones  v.  Bolles,  9  Wall.  SQi, 
369;  in  suit  by  insurance  company  brought  before  a  loss  to  cancel  a  fire 
policy  on  the  ground  of  fraud  in  its  procurement:  Home  Ins.  Co.  v.  Stanch- 
field,  1  Dill.  424,  429,  431-438,  2  Abb.  1;  to  set  aside  and  cancel  a  written 
agreement  on  the  ground  of  fraud:  Boyce's  Ex'rs  v.  Grundy,  3  Pet.  210,  215; 
when  equity  can  give  relief  against  a  forged  or  fraudulent  will  which  has 
been  admitted  to  probate,  to  parties  entitled  to  the  estate:  Case  of  Broder- 
ick's  Will,  21  Wall.  503;  to  set  aside  a  forged  deed  of  land  at  the  suit  of  the 
pretended  grantor,  although  the  deed  is  absolutely  void:  Bunce  v.  Gallaghers 
5  Blatch.  481,  487;  citing  Peirsoll  v.  Elliott,  6  Pet.  95;  Hamilton  v.  Cura- 
mings,  1  Johns.  Ch.  517;  in  a  suit  for  a  discovery  and  an  accounting:  Baker 
v.  Biddle,  1  Bald.  394,  403-411;  to  recover  amount  due  on  a  decree  for  ali- 
mony rendered  by  a  state  court  in  a  suit  for  divorce,  where  the  husband 
had  removed  to  another  state:  Barber  v.  Barber,  21  How.  582,  584,  591;  to 
restrain  a  private  nuisance:  Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545, 
550-553;  in  a  case  of  trust:  United  States  v.  Meyers,  2  Brock.  516;  by  a 
married  woman  against  an  executor  to  recover  money  given  by  the  will  to  her 
separate  use:  Hunt  v.  Danforth,  2  Curt.  592,  603;  by  stockholders  against 
a  corporation  and  its  managers  to  prevent  or  redress  wrongful  acts  and 
dealings  with  corporate  property  and  franchises:  Pond  v.  Vermont  Valley 
R.  R.,  2  Blatch.  280,  287;  to  enforce  a  payment  of  a  judgment  for  money 
recovered  at  law  against  a  municipal  corporation  which  is  wholly  insolvent: 
Putnam  v.  New  Albany,  4  Biss.  365;  to  enforce  by  appropriate  remedies 
any  equitable  rights  which  may  be  created  by  state  laws:  Clark  v.  Smith,  13 
Pet.  195.  203. 


§    298  EQUITY   JUKISPRUDENCB.  518 

properly  belonging  to  a  court  of  equity,  is  wholly  derived 
from  the  constitution  and  laws  of  the  United  States,  and  is 
utterly  unabridged  by  any  state  legislation,  yet,  on  the 
other  hand,  the  primary  rights,  interests,  and  estates  which 
are  dealt  with  in  such  suits  and  are  protected  by  such 
remedies  are  within  the  scope  of  state  authority,  and  may 
be  altered,  enlarged,  or  restricted  by  state  laws.^*^  The 
equitable  jurisdiction  of  the  national  courts  is  not  directly 
affected  by  the  state  statutes,  but  what  may  be  finally  ac- 
complished by  the  exercise  of  that  jurisdiction,  what  estates, 
property  rights,  and  other  interests  of  the  litigants  may  be 
maintained,  enforced,  or  enjoyed  by  its  means,  must  de- 
pend to  a  great  extent  upon  the  policy  of  legislation  adopted 
in  each  individual  state. 

§  298.  Territorial  Limitations. — There  is  one  other  special 
feature  of  the  jurisdiction  which  remains  to  be  considered, 
growing  out  of  the  peculiar  organization  of  the  national 
.judiciary,  and  the  restriction  of  the  powers  of  each  court 
within  certain  territorial  limits  or  districts  which  are  either 
-coincident  with  or  definite  parts  of  the  separate  states.* 
This  feature  to  which  I  refer  is  the  locality  of  the  subject- 
matter  of  the  suit  —  its  territorial  position  within  a  certain 
state  or  district  —  in  its  effect  upon  the  jurisdiction.  In  re- 
spect to  this  matter,  the  following  propositions  have  been 

8  As  a  familiar  illustration  of  this  proposition,  I  mention  the  statutes  in 
many  states  modifying  and  reconstructing  the  whole  suijiect  of  trusts  in 
real  and  personal  property,  and  creating  the  separate  property  of  married 
women,  and  the  like.  While  such  state  statutes  do  not  abridge  the  juris- 
diction of  the  national  courts  to  entertain  equitable  suits  concerning  trusts 
or  married  women's  property,  they,  of  course,  determine  the  rights  growing 
out  of  those  trusts  or  of  the  married  women  holding  separate  property. 

1  In  most  instances,  a  state  constitutes  a  single  judicial  district  ot  the 
United  States.  Some  of  the  larger  states,  like  New  York,  Pennsylvania, 
Ohio,  and  others,  are  divided  into  two  or  more  judicial  districts.  In  no  in- 
Btance  does  a  district  embrace  two  states,  or  portions  of  diU'erent  states. 

(c)    See  also  Independent  District  Bros.    Co.   v.    Youngstown    Coke   Co., 

of  Pella  V.   Beard,  83  Fed.  5,   13-10,  39    Fed.   353;    Deck   v.   Whitman,  96 

and   cases  cited;    Irvine  v.  Marshall,  Fed.  873. 
-.20  How.  .50.-,,  ].'-,  L.  ed.  098;   Andrews 


519  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  298 

established  by  repeated  and  unanimous  decisions:  Wbere 
the  subject-matter  of  the  suit  is  strictly  local,  the  jurisdic- 
tion of  the  United  States  court  depends  upon  such  locality, 
and  can  only  be  exercised  in  the  state  where  the  subject- 
matter  is  situated;  in  other  words,  where  the  subject-matter 
is  local,  and  the  suit  is  brought  for  the  purpose  of  directly 
affecting  or  acting  upon  this  subject-matter,  and  the  decree 
when  rendered  and  the  relief  when  granted  would  operate 
directly  upon  such  subject-matter,  and  not  merely  upon 
the  person  of  the  party  defendant,  then  the  situation  of 
the  subject-matter  determines  the  proper  place  for  the  exer- 
cise of  the  jurisdiction;  the  jurisdiction  can  only  be  exer- 
cised in  the  state  where  such  subject-matter  is  located.^ 
It  follows  as  a  necessary  consequence  that  where  a  court  of 
the  United  States  is  sitting  in  one  state,  no  decree  which 
it  renders  can  directly  affect  land  situated  in  another  state. 
On  the  other  hand,  although  the  subject-matter  may  be  local, 
—  as,  for  example,  a  tract  of  land, —  still  if  the  object  of  the 
suit  is  to  directly  deal  with  and  affect  the  person  of  the  de- 
fendant party,  and  not  this  subject-matter  itself,  and  the 
decree  when  rendered  and  the  relief  when  granted  would  in 
fact  directly  affect  and  operate  upon  the  person  of  the 
defendant  only,  and  would  not  directly  operate  upon  the 
subject-matter,  then  the  suit  may  be  maintained  in  any  state 
or  district  where  the  court  obtains  jurisdiction  of  the  per- 
son of  the  defendant,  although  the  subject-matter  of  the 

2  Miss.  &  Mo.  R.  R.  V.  Ward,  2  Black,  485;  Massie  v.  Watts,  6  Crancb, 
148;  North.  Indiana  R.  R.  v.  Mich.  Cent.  R.  R.,  15  How.  233,  5  McLean, 
444;  Tardy  v.  Morgan,  3  McLean,  358.  These  eases  will  sufficiently  illustrate 
both  the  meaning  of  the  rule  and  its  application.  In  Miss.  &  Mo.  R.  R.  v. 
Ward,  2  Black,  485,  it  was  held  that  the  United  States  circuit  court  in 
Illinois  had  no  jurisdiction  of  a  suit  brought  to  abate  a  nuisance  which 
was  situated  across  the  Mississippi  River,  within  the  territory  of  Iowa.  In 
Massie  v.  Watts,  6  Cranch,  148,  it  was  held  that  a  suit  on  behalf  of  the 
one  holding  the  equitable  estate  in  certain  land  to  compel  a  conveyance  to 
him  of  the  legal  title  is  thus  local,  and  can  only  be  maintained  in  the  state 
where  the  land  is  situated.  In  North.  Indiana  R.  R.  v.  Mich.  Cent.  R.  R., 
15  How.  233,  a  suit  brought  in  Michigan,  directly  dealing  with  the  title  and 
ownership  of  a  railroad  situated  in  Indiana,  was  dismissed  for  want  of  juris- 
diction. 


§    208  EQUITY   JURISPRUDENCE.  520 

controversy  referred  to  and  described  in  the  decree,  and 
ultimately  but  indirectly  affected  by  tbe  relief  granted,  may 
be  situated  in  another  state.  Under  this  rule,  it  is  well  set- 
tled that  equitable  suits  for  the  specific  performance  of  con- 
tracts, for  the  enforcement  of  trusts,  for  relief  on  the  ground 
of  fraud,  actual  or  constructive,  or  for  the  final  accounting 
and  settlement  of  a  partnership^  are  not  local,  although  the 
land  or  other  subject-matter  may  be  situated  in  a  state 
different  from  that  in  which  the  action  is  pending.  Such 
a  suit  may  be  brought  in  any  state  where  jurisdiction  is 
obtained  of  the  defendant's  person.  It  should  be  care- 
fully observed,  however,  that  a  decree  in  such  a  suit  direct- 
ing a  conveyance  of  the  land  under  the  contract,  or  in 
pursuance  of  the  trust,  or  directing  a  sale  or  conveyance 
of  the  partnership  land,  or  a  transfer  of  the  estate  affected 
by  the  fraud,  only  binds  and  operates  upon  the  person  of 
the  defendant;  it  is  not  of  itself  a  muniment  of  title,  and 
does  not  of  itself  transfer  any  title;  it  can  only  be  carried 
into  effect  by  an  actual  conveyance  executed  by  the  defend- 
ant; and  the  execution  of  such  conveyance  can  only  be 
compelled  by  proper  proceedings  directed  against  the  de- 
fendant personally,  such  as  attachment,  fine,  and  imprison- 
ment.^    I   have   thus   described   the   distinctive   elements 

SMassie  v.  Watts,  6  Cranch,  148;  Watkins  v.  Holman,  16  Pet.  25,  26  j 
Briggs  V.  French,  1  Sum.  504;  Lyman  v.  Lyman,  2  Paine,  11,  13;  Carring- 
ton's  Heirs  v.  Brents,  1  McLean,  167;  Watts  v.  Waddle,  1  McLean,  200; 
Tardy  v.  Morgan,  3  McLean,  358.  In  Massie  v.  Watts,  6  Cranch,  148,  the 
supreme  court  held  that  while  a  suit  by  the  equitable  owner  of  land  to  com- 
pel a  conveyance  of  the  legal  estate  is  local,  and  can  only  be  brought  in  the 
state  where  the  land  is  situated,  a  suit  on  contract,  or  trust,  or  fraud  is  not 
thus  local.  Watkins  v.  Holman,  16  Pet.  25,  is  a  leading  authority.  It  de- 
cided that  a  United  States  court  in  one  state  may  by  its  decree  order  the 
conveyance  of  land  in  another  state,  and  the  decree  may  be  enforced  against 
the  defendant  personally.  But  the  decree  itself  does  not  operate  on  the  land 
nor  on  the  title,  nor  docs  any  conveyance  made  under  the  decree  by  an  ofTicer, 
nor  by  any  one  else  other  than  the  very  person  himself  in  whom  the  title  to 
the  land  is  vested.  In  Briggs  v.  French,  1  Sum.  504,  the  same  rule  was  ap- 
plied by  Story,  J.,  to  cases  of  fraud,  either  actual  or  constructive.  In  Lyman 
V.  Lyman,  2  Paine,  11,  the  rule  was  applied  to  a  suit  for  the  settlement  of  a 
partnership  and  a  Bale  of  firm  lands  situated  in  another  state.     In  Tardy  y. 


521  JUDICIAL.   INTERPRETATION    OF    JURISDICTION.  §  299 

of  the  jurisdiction  held  by  the  United  States  courts,  and 
proceed  to  consider  the  several  states  as  they  may  be  ar- 
ranged in  a  few  groups  or  classes,  and  take  first  in  order  the. 
class  in  which  the  jurisdiction  is  or  has  been  wholly  statu- 
tory, special,  and  restricted. 

§,  299.  New  Hampshire  —  General  Extent  and  Nature. — 
The  statute  quoted  in  the  preceding  section,^  while  it 
particularly  mentions  several  important  specific  heads  of" 
equity  jurisprudence  and  equitable  cognizance,  also  con- 
tains in  its  general  clauses  a  very  broad  and  comprehensive 
grant  of  equity  jurisdiction.  The  courts  of  New  Hampshire 
have  given  a  very  liberal  interpretation  to  this  enactment. 
Unlike  the  courts  of  Massachusetts,  they  have  not  regarded 
the  language  ''  in  all  other  cases  where  there  is  not  a  plain, 
adequate,  and  complete  remedy  at  law  "  as  restrictive,  or  as 
imposing  any  new  and  statutory  limitation  upon  the  juris- 
diction otherwise  belonging  to  the  court  of  chancery;  but, 
following  the  example  of  the  United  States  courts  in  dealing 
with  a  similar  provision  of  the  Judiciary  Act,  they  have 
treated  the  clause  as  merely  declaratory  of  the  well-known 
principle  which  forms  an  essential  element  of  the  general 
equitable  jurisdiction  as  exercised  in  England  and  through- 
out this  country.  In  fact,  according  to  the  conclusions 
reached  by  the  court  after  a  careful  historical  examination, 
it  seems  to  be  decided  that  the  equitable  jurisdiction  now 
possessed  by  the  New  Hampshire  courts  is  not  derived  from 
this  statute;  that  it  existed  to  its  full  extent  during  the 
colonial  period,  and  has  never  been  abrogated  or  abandoned ; 

Morgan,  3  McLean,  358,  the  same  rule  was  reafiirmed,  and  it  was  further 
held  that  the  conveyance  made  by  the  defendant  in  pursuance  of  the  decree 
operates  under  the  deed  of  conveyance  itself,  and  not  under  the  decree  merely.* 
1  See  ante,  note  under  §  286. 

(a)  See  also  Montgomery  v.  United  133  U.  S.  107,  10  Sup.  Ct.  269.     In 

States,  36  Fed.  4,  a  case  of  the  spe-  the  latter  case,  a  suit  was  sustained 

cific   performance   of  a   contract   for  to  restrain  the  prosecution  of  a  suit 

the  sale  of  land  outside  the   state;  in  another  state.     The  subject  is  fur- 

and  Hart  v.  Sansom,  110  U.  S.  155,  ther   considered   in   Pom.   Eq.   Eem., 

3  Sup.  Ct.  586;  Cole  v.  Cunningham,  Introduction. 


§    299  EQUITY   JURISPKUDENCB.  522 

and  that  the  provisions  now  contained  in  the  Revised  Stat- 
utes of  the  state,  which  were  adopted  in  1832,  instead  of 
being  the  original  source  of  the  equitable  powers,  are 
simply  regulative  and  limiting  in  their  effect.  The  practi- 
cal conclusion  to  be  derived  from  a  comparison  of  the  lead- 
ing decisions  is,  that  with  respect  to  the  heads  of  equitable 
cognizance  enumerated  in  the  statute,  and  with  respect 
to  the  matters  embraced  in  the  broader  and  more  general 
grant  of  authority,  the  courts  of  New  Hampshire  possess 
the  full  equitable  jurisdiction,  equal  in  all  respects  to  that 
exercised  by  the  high  court  of  chancery  in  England,  so  far 
as  it  has  power  to  deal  with  the  same  subject-matter.  As 
the  statute,  like  some  portions  of  the  United  States  con- 
stitution, enumerates,  rather  than  describes,  the  courts,  in 
their  liberal  mode  of  interpretation,  have  held  that  their 
jurisdiction  includes  all  the  incidental  and  auxiliary  de- 
tails, powers,  and  remedies  belonging  to  the  general  system 
of  equity  jurisprudence,  and  reasonably  necessary  to  render 
their  principal  functions  effective  in  the  due  administration 
of  justice  according  to  the  methods  and  usages  of  equity; 
and  that  this  jurisdiction  has  not  been  restricted,  abridged, 
or  modified,  because  the  courts  of  law  may  have  obtained  the 
concurrent  power  to  grant  similar  remedies  whicJi  in  some 
cases  may  be  regarded  as  adequate.^      In  other  words, 

2  Wells  V.  Piorce,  27  N.  H.  503,  512  (1853)  ;  Walker  v.  Cheever,  35  N.  H. 
339,  349;  Bean  v.  Coleman,  44  N.  H.  539,  547;  Samuel  v.  Wiley,  50  N.  H. 
353,  354,  355;  Craft  v.  Thompson,  51  N.  H.  536,  542.  Since  the  discussion 
in  several  of  these  cases  is  very  able,  and  since  the  conclusions  reached  Avill 
apply  in  other  states  as  well  as  in  New  Hampshire,  and  will  aid  in  deter- 
mining the  extent  of  their  equitable  jurisdiction,  I  shall  quote  some  in- 
etrucUve  passages  from  one  or  two  of  these  opinions.  The  case  of  Wells 
V.  Pierce,  27  N.  H.  503,  is  especially  interesting.  The  historical  review  by 
Mr.  Justice  Bell  might  doubtless  throw  much  light  upon  the  equitable 
system  in  others  of  the  older  states.  I  quote  from  his  opinion,  at  page  512: 
"  This  court  has  a  broad  jurisdiction  as  a  court  of  equity  in  all  cases  of 
trust,  fraud,  accident,  or  mistake.  The  limits  of  its  jurisdiction  in  these 
cases  arc  coextensive  with  those  of  the  court  of  chancery  and  other  courts 
of  eciuity  in  England.  Equity,  as  a  great  brancli  of  the  law  of  their  na- 
tive country,  was  brought  over  by  the  colonists,  and  has  always  existed  as  a 
part  of  the  common  law,  in  its  broadest  sense,  in  New  Hampshire.  While 
our  territory  was  under  the  colonial  government  of  Massacliusetts,   there  is 


523  JUDICIAL,    INTERPRETATION    OF    JURISDICTION.  §  299 

while  tlie  equitable  jurisdiction  of  New  Hampshire  is  not 
in  its  extent  actually  commensurate  with  that  of  the  English 
court  of  chancery,  yet  so  far  as  it  does  extend,  and  with 
respect  to  all  matters  embraced  within  its  scope,  it  is  iden- 
tical with  the  jurisdiction  held  by  any  court  of  general 
equitable  powers.  Having  thus  shown  the  liberal  spirit  in 
which  the  courts  of  New  Hampshire  have  interpreted  the 
statutes,  and  their  tendency  to  maintain  and  enlarge  their 
own  equitable  powers,  and  the  comprehensive  equitable 
jurisdiction  which  they  possess,  I  shall  now  describe,  in  a 
very  brief  and  summary  manner,  the  practical  results  which 
have  been  reached  by  applying  this  mode  of  interpreta- 
tion to  the  most  important  subjects  of  equitable  cognizance. 

reason  to  believe  that  the  general  court  exercised  original  chancery  jurisdic- 
tion: Wash.  Jud,  Hist,  of  Mass.  34;  Ann.  Charters  of  Mass.  94.  Under  the 
first  royal  governor  of  this  province,  Robert  Mann  was  appointed  chancellor 
of  the  province,  and  among  the  early  records  are  to  be  found  bills  in  equity 
which  were  heard  and  decided  before  him:  1  Belk.  Hist.  198,  200.  In  1692, 
by  'An  act  for  establishing  courts  of  judicature,'  it  was  provided  that  '  there 
shall  be  a  court  of  chancery  within  this  province,  which  said  court  shall 
have  power  to  hear  and  determine  all  matters  of  equity,  and  shall  be  es- 
teemed and  accounted  the  high  court  of  chancery  of  this  province;  that  the 
governor  and  council  be  the  said  high  court  of  chancery,'  etc.  It  is  not 
known  that  this  law  was  ever  repealed,  and  it  is  supposed  that  the  governor 
and  council,  who  composed  the  court  of  appeals,  continued  to  exercise  chan- 
cery powers  till  the  Revolution.  .  .  .  Equity  having  thus  always  con- 
stituted a  part  of  the  law  of  New  Hampshire,  though  there  was  a  long 
period  after  the  Revolution  when  there  was  no  chancery  court,  and  the 
jurisdiction  conferred  on  this  court  in  1832  being  as  broad  as  equity  itself, 
the  question  whether  this  court  will  lose  its  jurisdiction  because  there  is 
adequate  remedy  at  law  is  to  be  decided  here  as  it  would  be  in  England. 
If  courts  of  equity  had  jurisdiction  in  certain  cases  for  which  the  ordinary 
proceedings  at  common  law  did  not  then  afford  an  adequate  remedy,  that 
jurisdiction  will  not  be  lost  because  authority  to  decide  in  such  cases  has 
been  conferred  on  courts  of  law  by  statute,  unless  there  are  negative  words 
excluding  the  jurisdiction  of  courts  of  equity.  .  .  .  It  is  well  known  that 
equitable  relief  can  be  but  very  imperfectly  obtained  in  courts  of  law,  be- 
cause the  power  of  those  courts  and  their  modes  of  practice  are  ill  adapted 
for  that  purpose.  On  the  investigation  of  all  questions  of  fraud,  the  dis- 
covery by  the  oath  of  the  party  is  one  of  the  effectual  means  for  its  detection. 
The  common  law  affords  no  means  of  obtaining  such  discovery,  and  the  recent 
statutory  enactments  [in  New  Hampshire]  are  but  an  imtried  experiment, 
which  may  fall  much  short  of  the  discovery  in  chancery."  Walker  v.  Cheever, 
35   N.   H.    339,   349,   per   Eastman,   J. :      "  Whatever   doubts   may   have   been 


§    300  EQUITY   JUKISPEUDENCE.  524 

It  will  appear  tliat  a  complete  system  of  equity  jurispru- 
dence has  been  developed  within  the  limits  which  fix  the- 
extent  of  the  equitable  jurisdiction. 

§  300.  Specific  Performance. —  The  courts  of  New  Hamp- 
shire possess  the  full  power  to  decree  the  specific  perform- 
ance of  executory  contracts,  whenever,  according  to  the 
doctrines  of  equity  jurisprudence,  such  remedy  is  or  may  be 
granted,  without  any  exception  or  limitation.^  The  juris- 
diction includes,  in  its  fullest  extent,  the  specific  enforce- 
ment of  verbal  contracts  for  the  purchase  and  sale  of  lands, 
either  where  the  agreement  is  admitted  by  the  defendant  in 
his  pleading,  or  where  a  part  performance  has  taken  the 
case  out  from  the  operation  of  the  statute  of  frauds.  The 
interpretation  put  upon  their  statutes  by  the  courts  of  Mas- 
sachusetts and  of  Maine,  whereby  the  power  to  enforce  the 
specific  performance  of  such  verbal  contracts  has  been 
denied,    is    expressly    rejected.^      In    administering    this 

entertained  heretofore,  we  regard  it  as  now  settled  that  this  court,  as  a 
court  of  equity,  has  full  chancery  powers,  and  a  general  equity  jurisdiction: 
Wells  V.  Pierce,  27  N.  H.  503;  and  that  it  will  administer  relief  in  all 
cases  falling  within  equity  jurisdiction,  where  the  statutes  of  the  state  have 
not  provided  other  means  of  redress."  The  court  further  held  that  th& 
objection  that  there  was  an  adequate  remedy  at  law  would  not  apply  to  the 
case,  since  it  is  a  well-established  principle  that  the  equitable  jurisdiction 
once  existing  will  not  be  lost  or  ousted  because  the  courts  of  law  have  adopted 
equitable  principles  and  give  relief  under  circumstances  which  formerly  be- 
longed to  the  domain  of  equity  alone.  Craft  v.  Thompson,  51  N.  H.  536,  542, 
per  Foster,  J. :  "  The  jurisdiction  of  a  court  of  equity,  especially  under  the 
statute,  is  very  comprehensive,  and  in  all  cases  of  fraud,  mistake,  or  ac- 
cident, courts  of  equity  may,  in  virtue  of  their  general  jurisdiction,  interfere 
to  set  aside  awards,  upon  the  same  principles  and  reasons  which  justify  their 
interference  in  regard  to  other  matters  where  there  is  no  adequate  remedy 
at  law.  And  this  court  may,  by  statute,  '  grant  writs  of  injunction  when- 
ever the  same  is  necessary  to  prevent  fraud  or  injustice':  G€n.  Stats.,  chap. 
190,  §  1." 

1  Newton  v.  Swazey,  8  N.  H.  9,  11;  Tilton  v.  Tilton,  9  N.  H.  385,  389 
Powers  v.  Hale,  25  N.  H.  145;  Pickering  v.  Pickering,  38  N.  H.  400,  407 
Bunton  v.  Smith,  40  N.  If.  352;  Eastman  v.  Plumer,  46  N.  H.  464,  478 
Churtier  v.  Marshall,  51  N.  II.  400;  Ewins  v.  Gordon,  49  N.  H.  444. 

2  Newton  v.  Swazey,  8  N.  H.  9,  11;  Tilton  v.  Tilton,  9  N.  H.  385,  389; 
Bunton  v.  Smith,  40  N.  H.  352.  In  Tilton  v.  Tilton,  9  N.  H.  385,  Wilcox,  J., 
said:  "It  is  no  objection  to  the  power  of  a  court  of  equity  to  decree  a 
Bpfcific   pcTfornianrc,   that   the  fontract   is   proved   only   by   parol    testimony. 


625     JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §§    301,    302 

remedy  the  courts  have  adopted  all  the  settled  rules  of 
equity  which  govern  its  use,  admitting  all  of  the  equitable 
limitations  and  defenses  which  are  really  meant  by  the 
ordinary  language  which  describes  it  as  *'  discretionary."' 

§  301.  Mortgage,  Foreclosure,  and  Redemption. —  As  the 
statute  in  express  terms  gives  jurisdiction  in  cases  ''  of  the 
redemption  and  foreclosure  of  mortgages,"  no  question 
could  arise  as  to  the  existence  of  a  full  power  to  grant 
vthese  remedies  under  all  circumstances  of  equitable  cogni- 
zance. It  is  decided,  however,  that  this  grant  of  equitable 
jurisdiction  in  cases  of  redemption  has  not  repealed  by 
amplication  a  prior  statute  passed  in  1829,  by  which  it  is 
provided  that  if  the  mortgagee  should  be  in  quiet  posses- 
■sion  of  the  mortgaged  premises  for  one  year  after  condition 
broken,  without  payment  or  lawful  tender  of  the  debt  within 
that  time,  the  mortgagor  should  be  thereby  forever  barred 
nnd  foreclosed  of  his  right  to  redeem.  This  statutory  fore- 
closure or  bar  is  not  abrogated  by  the  right  of  redemption 
by  means  of  a  suit  in  equity.^  A  suit  in  equity  may  be 
maintained  to  redeem  a  pledge,  if  an  accounting  is  necessary 
to  ascertain  the  amount  due^  or  there  has  been  an  assign- 
ment of  the  pledge.^ 

§  302.  Discovery —  The  statute  mentions  cases  **  of  dis- 
covery, where  discovery  may  be  had  according  to  the  course 
of  proceedings  in  equity."  The  earlier  decisions  plainly 
admit  a  discovery,  in  suits  brought  both  for  discovery  and 

Cases  in  Massachusetts  and  Maine  are  not  in  point  on  this  subject,  as 
they  rest  upon  the  peculiar  provisions  of  their  statutes  conferring  chancery 
(powers.  Tliis  court  has  the  power  to  decree  the  specific  performance  of  con- 
tracts generally  without  qualification;  and  it  is  a  reasonable  construction 
that  our  powers  on  this  subject  conform  substantially  to  the  practice  of 
courts  of  chancery  in  England,  so  far  as  that  practice  may  be  applicable  to 
our  condition." 

3  Powers  V.  Hale,  25  N.  H.  145;  Pickering  v,  Pickering,  38  N.  H.  400, 
407;  Eastman  v.  Plumer,  46  N.  H.  464,  478;  Chartier  v.  Marshall,  51 
N.  H.  400.  In  Ewins  v.  Gordon,  49  N.  H.  444,  a  unilateral  contract  in  the 
form  of  a  penal  bond  for  the  conveyance  of  land  was  enforced. 

1  Wendell  v.  New  Hampshire  Bank,  9  N.  H.  404,  416. 

2  White  Mts.  R.  R.  v.  Bay  State  Iron  Co.,  50  N.  H.  57   (1870). 


§    302  EQUITY    JURISPRUDENCE.  526 

relief,  as  a  source  of  jurisdiction,  or  rather,  perhaps,  as  an 
aid  to  the  exercise  of  the  jurisdiction  in  cases  where  the 
subject-matter,  such  as  fraud,  is  of  itself  one  of  equitable 
cognizance.  The  more  recent  decisions  leave  no  doubt  that 
the  so-called  ''American  rule,"  formerly  adopted  in  some 
of  the  states,  whereby  a  discovery  is  regarded  as  an  inde- 
pendent ground  of  a  concurrent  jurisdiction  to  adjudicate 
upon  purely  legal  rights  and  to  grant  purely  legal  remedies 
in  cases  not  otherwise  belonging  to  the  equitable  jurisdic- 
tion, is  rejected  by  the  courts  of  New  Hampshire.*  The 
suit  for  a  discovery  proper  without  any  relief,  in  aid  of  an 
action  or  defense  at  law,  seems  to  be  admitted,  although 
the  decisions  are  not  very  explicit.^  * 

ITappan  v.  Evans,  11  N.  H.  311,  325;  Stevens  v.  Williams,  12  N.  H. 
246;  Stone  v.  Anderson,  26  N.  H.  506,  518;  Miller  v.  Scammon,  52  N.  H. 
609,  610  (1873).  In  the  first  three  of  these  cases  the  suit  was  for  a  discovery 
and  relief,  and  the  discovery  was  held  proper,  and  even  the  jurisdiction  of 
the  court  was  spoken  of  as  partly,  at  least,  based  on  the  discovery.  But 
in  each  case  the  relief  was  sought  on  the  ground  of  fraud,  and  the  juris- 
diction was  expressly  held  to  exist  independently  of  any  discovery.  In 
the  latest  case  of  Miller  v.  Scammon,  52  N.  H.  609,  610,  which  was  also  one 
of  fraud,  Foster,  J.,  after  stating  the  general  jurisdiction  of  equity  in  cases 
of  fraud,  added:  "And  it  is  said  that  in  some  cases  of  fraud  for  which  the 
common  law  afi'ords  complete  and  adequate  relief,  chancery  may  have  con- 
current jurisdiction.  This  general  proposition,  however,  is  too  broad  when 
applied  to  our  practice,  under  the  rules  of  evidence  which  permit  and  re- 
quire parties  to  testify.  In  the  English  practice,  and  perhaps  in  some 
American  states,  equity  may  entertain  this  concurrent  jurisdiction,  because, 
although  the  remedy  at  law  may  be  said  to  be  adequate,  the  means  of  ob- 
taining the  truth,  where  discovery  by  the  oath  of  the  party  is  essential,  may 
be  wanting  or  deficient  in  the  courts  of  common  law.  .  .  .  But  to  a  very 
great  extent  the  right  to  enforce  discovery  and  search  the  conscience  of  the 
party,  which  was  formerly  only  to  be  had  in  chancery,  is  afforded  in  the 
practice  and  by  the  statutes  of  our  law  courts  as  fully  and  effectually  as 
by  a  court  of  equity."  This  opinion  fully  sustains  the  conclusions  reached 
by  me  in  the  text  of  a  former  paragraph,  concerning  the  effect  of  the  modern 
statutes  upon  the  doctrine  respecting  discovery  as  an  independent  source  of 
jurisdiction.     See  atite,  §  230. 

2  Stevens  v.  Williams,  12  N.  H.  246;  Dennis  v.  Riley,  21  N,  H.  50;  Robin- 
son v.  Wheeler.  51  N.  II.  384.     In  Stevens  v.  Williams,  12  N.  H.  246.  which 

(a)    That  an  action   for  discovery,  of  Reynolds  v.  Burgess  Sulphite  Fiber 

without  relief,  is  pcrniiHsil)!c  in  New  Co.,  71   N.  H.   332,  93  Am.   St.  Rep. 

Iluiipshirc    was    dctenriincd    in    the  535,  57   L.  R.  A.   949,   51   Atl.   1075, 

very   interesting  and   important   case  where  the  right  of  inspection  of  pur- 


527      JUDICIAL    INTERPRETATION    OF    JURISDICTION.    §§    303,    304 

§  303.  Fraud,  Cancellation,  Rescission,  and  Other  Remedies," 
—  The  general  equitable  jurisdiction  in  cases  of  fraud,  and 
the  power  to  grant  a  cancellation,  a  rescission,  an  injunc- 
tion, an  accounting,  or  any  other  kind  of  remedy,  necessary, 
under  the  circumstances,  to  attain  the  ends  of  justice,  are 
asserted  in  the  most  emphatic  manner.^  I  have  placed  in 
the  foot-note  some  illustrations  of  the  manner  in  which 
this  branch  of  the  jurisdiction  has  been  exercised,  and  of 
the  remedies  which  have  been  granted.^ 

§  304.  Mistake:  Reformation,  and  Other  Remedies. —  The 
jurisdiction  over  all  cases  of  mistake  which  are  matters  of 
equitable  cognizance,  and  to  grant  all  the  appropriate  reme- 
dies therein,  is  asserted  in  the  same  broad  and  unrestricted 

was  a  bill  for  discovery  and  relief,  the  court  expressly  declined  to  discuss 
the  question  whether  a  suit  for  a  discovery  alone  in  aid  of  an  action  or 
defense  at  law  was  within  the  jurisdiction.  But  in  the  two  other  cases  cited, 
the  propriety  of  such  a  suit  is  admitted,  by  judicial  dicta  at  least. 

1  Dodge  V.  Griswold,  8  N.  H.  425;  Tappan  v,  Evans,  11  N.  H.  311,  325; 
Stevens  v.  Williams,  12  N.  H.  246;  Riind  v.  Redington,  13  N.  H.  72,  76, 
38  Am.  Dec.  475;  Brewer  v.  Hyndnian,  18  N.  H.  9,  17;  Tracy  v.  Herrick,  25 
N.  H.  381,  394;  Stone  v.  Anderson,  26  N.  H.  506,  518;  Wells  v.  Pierce, 
27  N.  H.  503,  512;  Lyme  v.  Allen,  51  N.  H.  242;  Craft  v.  Thompson.  51 
N.  H.  536,  542;  Miller  v.  Scammon,  52  N.  H.  609,  610;  Marston  v.  Durgin, 
54  N.  H.  347,  374;  Gordon  v.  Gordon,  55  N.  H.  399;  Moore  v.  Kidder,  55 
N.  H.  488 ;  Hathaway  v.  Noble,  55  N.  H.  508. 

2  Remedy  of  cancellation  in  general:  Tappan  v.  Evans,  11  N.  H.  311,  325; 
Stone  v.  Anderson,  26  N.  H.  506,  518;  setting  aside  or  canceling  a  deed 
fraudulent  as  against  creditors :  Dodge  v.  Griswold,  8  N.  H.  425 ;  setting 
aside  an  award  on  the  ground  of  fraud :  Rand  v.  Redington,  13  N.  H.  72,  77, 
38  Am.  Dec.  475;  Tracy  v.  Herrick,  26  N.  H.  381,  394;  Craft  v.  Thompson,  51 
N.  H.  536,  542;  setting  aside  a  fraudulent  mortgage;  Brewer  v.  Hyndman,  18 
N.  H.  9,  11;  setting  aside  a  decree  of  a  probate  court  obtained  through  fraud: 
Gordon  v.  Gordon,  55  N.  H.  399;  injunction  to  restrain  commission  of 
fraud:  Marston  v.  Durgin,  54  N.  H.  347,  374;  injunction  against  a  judgment 
at  law  obtained  by  fraud,  or  to  which  there  was  a  defense  of  fraud:  Lyme 
V.  Allen,  51  N.  H.  242;  Craft  v.  Thompson,  51  N.  H.  536,  542;  suit  in 
aid  of  a  proceeding  at  law  to  prevent  a  party  from  fraudulently  transferring 
his  property  so  as  to  defeat  the  collection  of  a  judgment  to  be  recovered 
against  him:  Moore  v.  Kidder,  55  N.  H.  488;  delay  and  laches  of  the  de- 
frauded party,  their  effect  upon  his  right  to  relief  against  the  fraud:  Hath- 
away V.  Noble,  55  N.  H.  508. 

sonal   prop('rty  belonging  to   the  de-  (a)    This    paragraph    is    cited    in 

fendant,  in  aid  of  an  action  for  a  Druon  v.  Sullivan,  66  Vt.  609,  30 
personal  tort,  was  enforced.  Atl.  98. 


§    305  EQUITY   JURISPRUDENCE.  528 

terms  as  tliat  over  cases  of  f raud.^  The  equitable  doctrines 
concerning  the  reformation  of  written  instruments  on  ac- 
count of  mistake  are  fully  accepted.  The  American  rule 
which  permits  parol  evidence  of  such  a  mistake  on  behalf 
■of  the  plaintiff  who  seeks  to  reform  an  agreement  and 
then  to  compel  its  specific  performance  as  thus  reformed, 
as  well  as  on  behalf  of  the  defendant  who  seeks  to  defeat 
its  performance  by  proving  a  mistake,  is  also  adopted.^ 
The  remedy  of  rescission  may  also  be  granted;  as,  for  ex- 
ample, where  an  award  is  set  aside  on  account  of  mistake.' 
Other  reliefs  may  be  given,  depending  upon  the  special  cir- 
cumstances of  the  case.* 

§  305.  Trusts. —  Jurisdiction  is  expressly  given  by  the 
statute  in  cases  of  trust  as  well  as  of  fraud  and  mistake. 
This  embraces,  it  has  been  held,  not  merely  the  general 
power  to  enforce  the  performance  of  a  trust  against  the 
trustee  at  the  suit  of  the  beneficiary,  but  all  the  incidental 
and  auxiliary  powers  and  remedies  which  may  be  neces- 
sary to  maintain  and  protect  the  rights  of  all  the  parties 
interested;  as,  for  example,  the  removal  of  trustees,  the 
appointment  of  trustees,  the  interpretation  and  construc- 
tion of  instruments  creating  a  trust,  the  direction  and  man- 
agement of  trustees  in  the  performance  of  their  duties,  the 

1  Rand  v.  Eedington,  13  N.  H.  72,  76,  38  Am.  Dec.  475 ;  Bellows  v.  Stone, 
14  N.  H.  175;  Smith  v.  Greeley,  14  N.  H.  378;  Underwood  v.  Campbell,  14 
N.  H.  393;  Craig  v.  Kittredge,  23  N.  H.  231;  Tracy  v.  Herrick,  25  N.  H, 
381,  394;  Wells  v.  Pierce,  27  N.  H.  503,  512;  Busby  v.  Littlelield,  31  N.  H. 
193,  199,  33  N.  H.  76;  Avery  v.  Bowman,  40  N.  H.  453,  77  Am.  Dec.  728; 
Craft  V.  Thompson,  51  N.  H.  536,  542;  Bradford  v.  Bradford,  54  N.  H.  403. 

2 Bellows  V.  Stone,  14  N.  H.  175  (parol  evidence  on  behalf  of  the  plain- 
tiff in  case  of  reformation  and  specific  performance,  as  well  as  on  part  of  the 
defendant);  Smith  v.  Greeley,  14  N.  H.  378;  Busby  v.  Littlefield,  31  N.  H. 
193,  199,  33  N.  H.  70;  Bradford  v.  Bradford,  54  N.  H.  463  (when  a  reforma- 
tion will  not  be  granted). 

SRand  v.  Redington,  13  N.  H.  72,  76,  38  Am.  Dec.  475;  Tracy  v.  Her- 
rick, 25  N.  H.  381,  394;  Craft  v.  Thompson,  51  N.  H.  536,  542. 

4  Avery  v.  Bowman,  40  N.  H.  453,  77  Am.  Dec.  728.  A  mistake  was 
tiiade  in  levying  an  execution  by  which  a  too  large  amount  of  land  was  taken 
and  transferred  to  the  execution  creditor.  Such  mistake  may  be  corrected 
by  a  decree  compelling  the  creditor  to  reconvey  the  excess  to  the  judgment 
debtor. 


529     JUDICIAL,   INTERPRETATION    OF    JURISDICTION.  §§    306,    307 

supervision  of  investments  of  trust  property,  and  other  Vike 
incidents.^ 

§  306.  Accounting. —  Although  this  remedy  is  not  speci- 
fically mentioned  in  the  statute,  the  jurisdiction  to  compel 
an  accounting  and  to  settle  accounts  exists,  and  is  exer- 
cised by  the  courts,  under  the  regulations,  restrictions,  and 
limitations  governing  its  use,  which  form  a  part  of  equity 
jurisprudence.^ 

§  307.  Injunction —  The  statute  expressly  authorizes  an 
injunction  *'  whenever  the  same  is  necessary  to  prevent 
fraud  and  injustice."  The  jurisdiction  has  been  exercised 
in  a  very  careful  and  guarded  manner,  and  the  courts  have 
shown  a  tendency  to  restrict  rather  than  to  enlarge  its  use.^ 
Where  the  facts  and  circumstances  are  sufficient,  and  the 
remedy  at  law  is  inadequate,  it  may  be  granted  to  restrain 
a  private  nuisance,^  to  prevent  waste,^  to  restrain  a  tres- 
pass when  it  is  continuous  or  would  produce  irreparable 
injury,*  and  to  stay  an  action,  judgment,  or  execution  at 
law.*^    An  injunction  may  also  be  proper  in  a  suit  by  stock- 

§  305,  1  Wells  V.  Pierce,  27  N.  H.  503,  512;  Wheeler  v.  Perry,  18  N.  H.  307, 
311  (construction  of  the  trust,  aiding  and  directing  the  trustee,  in  the  manage- 
ment of  the  trust  property)  ;  Petition  of  Baptist  Church,  51  N.  H.  424  (same 
as  the  last)  ;  Methodist  Epis.  Soc.  v.  Heirs  of  Harrinian,  54  N.  H.  444,  445 
(charitable  trusts,  direction  of  investments,  etc.)  ;  but  under  this  general 
power  over  trusts,  the  courts  of  New  Hampshire  do  not  possess  the  jurisdic- 
tion to  entertain  the  "  administration  suit "  under  ordinary  circumstances : 
Walker  v.  Cheever,  35  N.  H.  339,  349. 

§  306,  1  Walker  v.  Cheever,  35  N.  H.  339,  349  (will  not  exercise  the  jurisdic- 
tion when  the  account  is  all  on  one  side,  and  no  discovery  is  asked) ;  Treadwell 
V.  Brown,  41  N.  H.  12  (accounting  and  settlement  of  a  partnership  at  suit 
of  a  creditor  of  one  individual  partner)  ;  Dennett  v.  Dennett,  43  N.  H. 
499,  501,  503  (account  of  waste)  ;  White  Mts.  R.  R.  v.  Bay  State  Iron  Co., 
50  N.  H.  57   (accounting  in  suit  to  redeem  a  pledge). 

§  307,  1  Marston  v.  Durgin,  54  N.  H.  347,  374;  B.  &  M.  R.  R.  v.  P.  &  D.  R.  R., 
57  N.  H.  200;  Webber  v.  Gage,  39  N.  H.  182. 

§  307,  2Coe  V.  Winnipiseogee  M,  Co.,  37  N.  H.  254;  Webber  v.  Gage,  39 
N.  H.  182;  Burnham  v.  Kempton,  44  N.  H.  78,  79,  92;  Eastman  v.  Amoskeag  M. 
Co.,  47  N.  H.  71,  78;  Bassett  v.  Salisbury  M.  Co.,  47  N.  H.  426,  437. 

§  307,  3  Dennett  v.  Dennett,  43  N.  H.  499,  501,  503. 

§  307,  4  Hodgman  v.  Richards,  45  N.  H.  28. 

§  307,  5  Hibbard  v.  Eastman,  47  N.  H.  507,  508,  93  Am.  Dec.  467 ;  Lyme  v. 
Allen,  51  N.  H.  242;  Robinson  v.  Wheeler,  5]  N.  H.  384;  Craft  v.  Thompson,  51 
N.  H.  536,  542. 

Vol.  1  —  34 


§§    308-310  EQUITY   JUEISPRUDENCE.  530 

holders  to  restrain  the  managing  officers  of  a  corporation 
from  improper  dealings  with  the  corporate  property  and 
franchises,®  but  there  is  no  jurisdiction  of  equity  to  restrain 
the  collection  of  a  tax  illegally  assessed  and  laidJ 

§  308.  Nuisance  and  Waste. —  The  statute  expressly  men- 
tions these  heads  in  its  enumeration  of  powers.  The  su- 
preme court,  while  asserting  the  full  equitable  jurisdiction 
to  restrain  or  abate  nuisances  of  all  kinds,  has  exercised  it 
with  great  caution,  and  has  evidently  preferred  to  leave 
the  injured  party  to  his  legal  remedy  wherever  that  was 
at  all  practicable.^  The  same  is  true  concerning  waste^ 
and  trespass.^ 

§  309.  Creditor's  Suit. —  The  statute  in  express  terms  per- 
mits the  "  creditor's  suit  "  by  a  judgment  creditor  whose 
legal  remedies  have  been  exhausted.  The  supreme  court 
has  sustained  the  full  equitable  jurisdiction  on  behalf  of  the 
judgment  creditor  to  reach  the  equitable  rights  and  estates 
of  the  debtor,  or  assets  not  subject  to  levy  by  execution  or 
attachment,  or  property  fraudulently  assigned  and  trans- 
ferred; and  has  even  held  that  jurisdiction  exists  inde- 
pendently of  the  express  statutory  grant.^ 

§  310.  Other  Special  Cases. —  In  addition  to  the  foregoing 
general  heads  of  equitable  cognizance,  the  jurisdiction  has 
been  asserted  or  exercised  in  the  following  cases :  To  re- 
move a  cloud  from  title  by  setting  aside  a  deed  of  land;^ 
in  a  suit  for  the  partition  of  real  estate;^  for  the  estab- 
lishment of  a  widow's  dower  right  and  the  assignment  of 

§  307,  6  March  v.  Eastern  R.  R.,  40  N.  H.  548,  567,  77  Am.  Dec.  732. 

§  307,  7  Brown  v.  Concord,  56  N.  H.  375. 

§  308,  1  Coe  V.  Winnipiscogce  M.  Co.,  37  N.  H.  254;  Webber  v.  Gage,  39 
N.  II.  182;  Burnham  v.  Kciiipton,  44  N.  H.  78,  79,  92;  Eastman  v.  Amoskeag  M. 
Co.,  47  N.  11.  71,  78;  BasseLt  v.  Salisbury  M.  Co.,  47  N.  H.  420,  437.  The 
discussion  of  the  doctrine  in  some  of  tlicse  cases  is  very  elaborate  and  able. 

§  308,  2  Dennett  v.  Dennett,  43  N.  H.  499,  501,  503. 

i  308,  3  Ilodgman  v.  Richards,  45  N.  H.  28. 

§  309,  1  Bay  State  Iron  Co.  v.  Goodall,  39  N.  H.  223,  230;  Sheafe  v.  Sheafe, 
40  N.  H.  510,  518;  Treadwell  v.  Brown,  44  N.  H.  551. 

§  310,  1  Downing  v.  VVhcrrin,  19  N.  H.  9,  91,  49  Am.  Dec.  139. 

I  310,  '^  W  bitten  v.  VVhiLten,  30  N.  U.  320,  332. 


531  JUDICIAL.   INTERPRETATION    OF    JURISDICTION.  §    311 

her  dower  f  to  define  and  limit  a  right  of  way  and  to  regu- 
late its  use  ;^  in  a  suit  by  stockholders  against  the  corpora- 
tion and  its  managers  to  prevent  or  redress  any  improper 
dealings  with  the  corporate  property  or  franchises  f  in  a  suit 
for  an  accounting  and  settlement  of  partnership  matters;* 
to  order  the  arrest  of  a  party  to  a  suit  who  is  intending  to- 
leave  the  state  for  the  purpose  of  avoiding  the  decree  which 
will  be  rendered  therein.'^  On  the  other  hand,  it  is  held 
that  a  court  of  equity  in  New  Hampshire  does  not  possess 
jurisdiction  to  entertain  a  suit  for  the  administration  and 
settlement  of  a  decedent's  estate,  that  subject  having  been 
intrusted  to  the  courts  of  probate  f  nor  the  jurisdiction  to* 
restrain  the  collection  of  a  tax  illegally  assessed.® 

§  311.  Massachusetts :  General  Extent  and  Nature  —  The 
Statutory  Construction. —  The  courts  of  Massachusetts  origi- 
nally possessed  the  narrowest  possible  equitable  jurisdic- 
tion; and  the  legislation  successively  enlarging  the  scope 
of  their  equitable  powers  has,  until  within  a  few  years  past, 
been  very  gradual  and  exceedingly  cautious.  The  earliest 
statute  of  1798,  chapter  77,  conferred  an  authority  only  in 
cases  of  foreclosure  or  redemption  of  mortgages.  In  the 
Laws  of  1817,  chapter  87,  the  legislature  gave  to  the  su- 
preme court  jurisdiction  in  equity  over  ' '  all  cases  of  trust 
arising  under  deeds,  wills,  or  in  the  settlement  of  estates, 
and  all  cases  of  contract  in  writing,  where  a  party  claims 
the  specific  performance  of  the  same,  and  in  which  there 
may  not  be  a  plain,  adequate,  and  complete  remedy  at  law.'* 
Other  statutes  were  passed,  and  additional  powers  were 
given,  enlarged,  or  modified  in  the  Revised  Statutes  of  1830, 
and  in  1851,  1853,  1855,  1857,  and  1858,  until  the  various 
provisions  were  completed  which  are  collected  and  con- 

3  Norris  v.  Morrison,  45  N.  H.  490. 

4  Bean  v.  Coleman,  44  N.  H.  539,  547. 

»  March  v.  Eastern  R.  R.,  40  N.  H.  548,  567,  77  Am.  Dec.  732. 
«Treadwell  v.  Brown,  41  N.  H.  12. 

7  Samuel  v.  Wiley,  50  N.  H.  353-355. 

8  Walker  v.  Cheever,  35  N.  H.  339,  349. 
»  Brown  v.  Concord,  56  N.  H.  375. 


.1    312  EQUITY   JURISPEUDENCB.  532 

•Sensed  in  chapter  113,  section  2,  of  the  Kevised  Statutes  of 
1873;  quoted  in  the  preceding  section.^  Finally,  by  the 
Laws  of  1877,  chapter  178,  the  last .  subdivision  of  said 
chapter  113,  section  2,  of  the  Revised  Statutes,  which  reads, 
**  And  shall  have  fully  equity  jurisdiction  according  to  the 
usage  and  practice  of  courts  of  equity,  in  all  other  cases 
where  there  is  not  a  plain,  adequate,  and  complete  remedy 
•at  law,"  was  repealed,  and  instead  thereof  was  substituted 
the  following  most  comprehensive  provision:  "  The  su- 
preme judicial  court  shall  have  jurisdiction  in  equity  of  all 
cases  and  matters  of  equity  cognizable  under  the  general 
principles  of  equity  jurisprudence;  and  in  respect  of  all 
such  cases  and  matters  shall  be  a  court  of  general  equity 
jurisdiction," 

§  312.  The  language  of  this  last  enactment  seems  to  be 
as  strong,  in  its  grant  of  powers,  as  any  which  could  pos- 
sibly be  used.  There  can  be  no  reasonable  doubt  that  under 
dt  a  complete  equitable  jurisdiction  commensurate  in  its  na- 
ture and  extent  with  that  held  by  the  English  court  of  chan- 
cery is  conferred  upon  the  supreme  judicial  court, —  a  juris- 
diction absolutely  unrestricted  and  unlimited  save  by  the 
principles  inherent  in  the  system  of  equity  jurisprudence 
itself,*  and  except,  perhaps,  with  respect  to  some  particular 
matters,  by  positive  mandatory  provisions  of  other  statutes 
of  the  state.^  The  supreme  judicial  court  is  now  a  tribunal 
of  general  equitable  powers  and  functions.  It  seems  to  be 
wholly  unnecessary,  therefore,  to  examine  the  course  of 
past  decision  and  the  judicial  interpretation  put  upon  the 
prior  series  of  statutes  for  the  purpose  of  ascertaining  the 

§  311,  1  See  ante,  in  note  under  §  286. 

§  312,  1  As  an  illustration  of  my  meaning,  it  may  very  .well  be  held,  as  it  is 
in  many  other  states,  that,  notwithstanding  this  sweeping  grant  of  a  general 
equitable  jurisdiction,  the  ordinary  jurisdiction  over  administrations  and  the 
settlement  of  decedents'  estates  is  exclusively  given  by  other  statutes  to  the 
courts  of  probate. 

(a)    So   held    in   numerous   recent  Massachusetts)  ;    Niles    v.    Graham, 

•cases.      See   Parker   v.    Simpson,    180  181  Mass.  41,  02  N.  E.  986;  Gorgam 

Mass.  334,  62  N.  E.  401    (a  full  his-  t.  Pope    (Mass.),  69  N.   E.  343. 
ttorical    review  of   the  jurisdiction   in 


533  JUDICIAIi    INTERPKETATION    OF    JURISDICTION.  §    313 

amount  of  equitable  jurisdiction  at  present  established  in 
Massachusetts.  The  act  of  1877  has  swept  away  the  results 
of  more  than  a  half -century  of  careful  judicial  labor.  It  is 
very  important,  however,  to  examine  this  course  of  past 
decision,  and  to  state  in  a  summary  manner  the  inter- 
pretation given  to  the  prior  statutes,  in  order  to  show  the 
value  of  the  decisions  themselves  —  many  of  them  most 
able,  elaborate,  and  learned  —  as  precedents,  to  discover 
their  probable  bearing  upon  the  future  development  of 
equity  within  the  state,  and  to  understand  their  relations 
with  the  general  system  of  equitable  jurisdiction  and  juris- 
prudence throughout  the  entire  country.  Unless  the' 
methods  of  interpretation  and  of  dealing  with  their  equi- 
table powers  pursued  by  the  Massachusetts  judges  were  de- 
scribed, and  the  restrictive  effects  necessarily  produced  by 
the  former  legislation  were  explained,  many  of  these  de- 
cisions would  be  exceedingly  misleading  as  authorities  upoB 
the  powers  and  doctrines  of  equity  in  other  states.  I  pur- 
pose, therefore,  to  exhibit,  in  a  very  condensed  and  sum- 
mary form,  the  course  and  results  of  the  judicial  interpre- 
tation put  upon  the  prior  statutory  grants  of  jurisdiction. 
§  313.*  The  following  single  principle  lies  at  the  basis 
of  and  explains  this  entire  course  of  interpretation,  and 
separates  the  decisions  made  in  it  from  the  equitable  sys- 
tem prevailing  in  any  other  state  except  Maine.  It  has 
been  constantly  asserted  that  the  courts  of  Massachusetts 
possess  no  inherent  equitable  functions  and  authority  what- 
soever, but  are,  in  their  original  creation  and  endowment^ 
purely  common-law  tribunals ;  that  all  the  equitable  powers 
which  they  hold  are  those  conferred  by  the  express  terms 
of  some  statute;  that  all  these  statutory  grants  have  been 
coupled  with  the  condition  that  such  powers  shall  only  exist 
in  cases  where  there  is  no  plain,  adequate,  and  certain 
remedy  at  law,  and  this  clause,  instead  of  being  merely 
formal,  is  the  very  test  and  criterion  of  the  jurisdiction, 

(a)   This  paragraph  of  the  text  is       126,   27   Am.    St.   Rep.   728,    12   Atl. 
cited  in  Moiilton  v.  Smith,   16  R.  I.       891. 


§   313  EQUITY   JURISPRUDENCE.  534 

limiting  and  restricting  it  on  all  sides,  and  applying  not 
simply  to  the  remedies  known  to  the  ancient  common-law 
system  of  procedure,  but  to  those  legal  remedies  from  time 
to  time  created  and  furnished  by  the  state  legislation.  In 
giving  effect  to  the  statutes,  the  strictest  mode  of  interpre- 
tation has  been  uniformly  adopted.  In  following  out  the 
policy  assumed  to  have  been  intended  by  the  legislature,  it 
has  been  settled  that  the  courts  took  no  powers  nor  jurisdic- 
tion over  any  equitable  right  or  to  administer  any  equitable 
remedy,  except  those  plainly  permitted  by  the  express  and 
positive  language  of  the  statutes;  and  that  this  language 
could  never  be  enlarged  by  judicial  construction,  so  as  to 
include  and  confer  by  implication  any  authority  which  was 
not  thus  expressly  mentioned  in  the  terms  used  by  the  legis- 
lature. This  restrictive  method  of  interpretation  has  been 
pursued  without  any  exception,  and  has  sometimes  pro- 
duced very  strange  results.  Over  all  these  express  grants 
•extends  the  clause  limiting  their  operation  to  cases  in  which 
there  is  no  adequate  remedy  at  law.  In  dealing  with  this 
clause  the  courts  have  followed  a  course  directly  opposed  to 
that  adopted  by  the  national  judiciary,  and  have  given  the 
strongest  effect  to  its  restrictive  words.  As  a  necessary 
result  of  this  judicial  action,  the  equitable  jurisdiction  and 
jurisprudence  of  Massachusetts  have  been  fragmentary  in 
form,  and  curtailed  and  limited  in  every  portion  and  with 
respect  to  every  kind  of  subject-matter,  unlike  the  equitable 
system  prevailing  in  England  or  in  most  of  the  other 
states.^    This  peculiar  character  will  doubtless  be  changed 

1  The  following  cases  are  given  as  examples  of  the  mode  of  interpreta- 
tion, and  illustrations  of  the  principle  described  in  the  text,  selected  from 
several  important  heads  of  the  equitable  jurisprudence:  Kelleran  v.  Brown, 
4  Mass.  443  (equitable  mortgage)  ;  Dwight  v.  Pomeroy,  17  Mass.  302,  324, 
327,  9  Am.  Dec.  148,  per  Parker,  C.  J.  (specific  performance  of  contract)  ; 
Putnam  v.  Putnam,  4  Pick.  139-141,  per  Parker,  C.  J.  (bill  of  revivor  to 
redeem  a  mortgage)  ;  Black  v.  Black,  4  Pick.  234,  23G,  per  Parker,  C.  J. 
(implied  or  constructive  trust)  ;  Jones  v.  Boston  Mill  Corp'n,  4  Pick.  507, 
509,  511,  512,  per  Parker,  C.  J.  (specific  performance  of  an  award)  ;  Hunt 
V.  Maynard,  6  Pick.  489  (redeeming  a  mortgage)  ;  Campbell  v.  Sheldon,  13 
•Pick.  8   (lost  deeds  and  trusts  created  by  foreign  wills)  ;   Dimmock  v.  Bixby, 


535  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    314 

in  the  future.  To  the  general  description  thus  given  of  the 
jurisdiction  as  it  depended  upon  the  former  statutes,  I  shall 
add  very  briefly  the  results  which  have  been  reached  with 
respect  to  some  of  the  most  important  subject-matters  of 
equitable  cognizance. 

§  314.  Specific  Performance. —  The  power  to  decree  the 
specific  execution  of  written  contracts  was  given  by  an  early 
statute,  and  the  provisions  contained  in  the  revision  of  1873, 

20  Pick.  368,  372  (assignment  for  the  benefit  of  creditors)  ;  Wright  v.  Dame, 
22  Pick.  55,  60,  per  Wilde,  J.  (implied  trust)  ;  Eaton  v.  Green,  22  Pick.  526, 
529,  531,  per  Wilde,  J.  (equitable  mortgage)  ;  Whitney  v.  Stearns,  11  Met. 
319  (fraud  and  trust)  ;  Clarke  v.  Sibley,  13  Met.  210  (equitable  mortgage  or 
lien)  ;  Parker  v.  May,  5  Cush.  336,  341  (charitable  trusts)  ;  Jacobs  v.  Peter- 
borough, etc.,  R.  R.  Co.,  8  Cush.  223,  225  (specific  performance  of  a  verbal 
contract  for  the  sale  of  land)  ;  Bowditch  v.  Banuelos,  1  Gray,  220,  228,  per 
Shaw,  C.  J.  (trusts  arising  from  a  deed)  ;  Harvard  Coll.  v.  Society  for 
Promoting  Theol.  Education,  3  Gray,  280,  282,  per  bewey,  J.  (charitable 
trusts)  ;  Treadwell  v.  Cordis,  5  Gray,  341,  348,  per  Shaw,  C.  J.  (construc- 
tion of  a  will  with  trusts)  ;  Old  Colony  R.  R.  Co.  v.  Evans,  6  Gray,  25,  30,  per 
Dewey,  J.  (specific  performance  of  a  contract)  ;  Sanborn  v.  Sanborn,  7  Gray, 
142  (specific  performance  of  a  verbal  contract  for  the  sale  of  land)  ;  Miller 
V.  Goodwin,  8  Gray,  542  (specific  performance  against  heirs  and  adminis- 
trator of  deceased  vendor)  ;  Campbell  v.  Wallace,  10  Gray,  162,  163,  per 
Thomas,  J.  (trusts  created  by  a  foreign  will)  ;  Buck  v.  Dowley,  16  Gray,  555, 
657,  per  Chapman,  J.  (specific  performance  of  a  verbal  contract,  and  enforce- 
ment of  parol  trusts)  ;  Brown  v.  Evans,  6  Allen,  333,  336,  per  Merrick,  J. 
(specific  enforcement  of  an  award)  ;  Drury  v.  Inhabitants  of  Natick,  10 
Allen,  1(j9,  175  (charitable  trusts)  ;  Jackson  v.  Phillips,  14  Allen,  539,  593 
(charitable  trusts)  ;  Bassett  v.  Brown,  100  Mass.  355  (no  jurisdiction  at  suit 
of  defrauded  grantor  to  set  aside  a  conveyance  of  land  obtained  by  fraud)  ; 
Carlton  v.  City  of  Salem,  103  Mass.  141  (suit  by  taxable  inhabitants  to  re- 
strain municipal  officers  from  illegal  acts)  ;  Suter  v.  Matthews,  115  Mass.  253 
(no  concurrent  jurisdiction  in  equity  over  cases  of  fraud  where  there  is  an 
adequate  remedy  at  law)  ;  Jones  v.  Newhall,  115  Mass.  244,  247,  15  Am.  Rep. 
97,  per  Wells,  J.  (no  jurisdiction  to  compel  the  specific  performance  of  a 
contract  at  a  suit  of  the  vendor  when  the  only  substantial  relief  would  be 
the  recovery  of  the  purchase  price,  the  remedy  at  law  being  held  adequate)  ; 
Frue  V.  Loring,  120  Mass.  507  (no  jurisdiction  to  recover  an  amount  of  money 
alleged  to  be  due  in  consequence  of  an  implied  trust,  the  remedy  at  law  being 
adequate).  I  have  purposely  arranged  these  cases  in  the  order  of  their  dates, 
rather  than  according  to  their  subject-matters,  so  that  the  method  of  inter- 
pretation running  through  them  might  be  the  more  clearly  shown.  It  will 
be  seen  that  in  the  very  latest  ones  of  the  series,  decided  after  the  powers 
of  the  court  had  been  so  much  enlarged  by  successive  statutes,  the  principle 
of  interpretation  concerning  the  equitable  jurisdiction  stated  in  the  text  was 
asserted  with  even  greater  emphasis  than  in  the  earlier  cases. 


§    315  EQUITY   JUKISPRUDENCE.  536^ 

quoted  in  the  preceding  section,  confer  this  particular  juris- 
diction in  ample  terms.  The  courts  have  therefore  had  na 
difficulty  in  decreeing  the  specific  execution  of  written  con- 
tracts in  accordance  with  the  settled  doctrines  of  equity 
jurisprudence  between  the  original  parties/  and  in  faror 
of  an  assignee  of  the  vendee  against  the  vendor,^  and  in 
favor  of  the  heirs  and  administrator  of  a  deceased  vendeCj, 
or  against  the  heirs  and  administrator  of  a  deceased  ven- 
dor.^ The  jurisdiction  did  not,  however,  include  the  spe- 
cific execution  of  awards,*  nor  of  verbal  contracts  for  the 
sale  of  land  on  the  ground  of  part  performance.'*  In  one 
of  the  recent  cases  it  was  held,  after  a  very  elaborate  exam- 
ination of  the  legislative  system  and  policy,  that  there  was 
no  jurisdiction  to  decree  the  specific  performance  of  a  con- 
tract on  behalf  of  the  vendor  when  the  only  substantial  re- 
lief to  be  obtained  was  the  pajonent  of  the  purchase-money 
by  the  vendee.® 

§  315.  Trusts. —  The  statute  of  1817  gave  power  to  the 
supreme  court  to  determine  in  equity  '*  all  cases  of  trust 
arising  under  deeds,  wills,  or  in  the  settlement  of  estates.'^ 

iDwight  V.  Pomeroy,  17  Mass.  302,  327,  9  Am.  Dec.  148;  Salisbury  v. 
Bigelow,  20  Pick.  174;  Hilliard  v.  Allen,  4  Cush.  532,  535;  Old  Colony 
R.  R.  Co.  V.  Evans,  6  Gray,  25,  30,  66  Am.  Dec.  394;  Boston  &  Me.  R.  R.  v. 
Bartlett,  10  Gray,  384. 

2  Currier  v.  Howard,  14  Gray,  511. 

8  Reed  v.  Whitney,  7  Gray,  533;  Miller  v.  Goodwin,  8  Gray,  542;  Davis  v. 
Pope,  12  Gray,  193,  197;  Bell  v.  City  of  Boston,  101  Mass.  506,  511. 

4  Jones  V.  Boston  Mill  Corp'n,  4  Pick.  507,  512;  Brown  v.  Evans,  6  Allen^ 
333,  336;  Howe  v.  Nickerson,  14  Allen,  400,  406. 

0  This  ruling  was  placed  upon  the  ground  that  the  express  terms  of  the 
statute  only  mentioned  written  contracts;  and  the  court  refused  to  exer- 
cise any  enlarged  powers  by  implication  from  other  heads  of  the  statutory 
jurisdiction:  Dwight  v.  Pomeroy,  17  Mass.  302,  9  Am.  Dec.  148;  Jacobs  v. 
Peterborough,  etc.,  R.  R.,  8  Cush.  223,  225;  Sanborn  v.  Sanborn,  7  Gray, 
142;  Buck  v.  Dowley,  16  Gray,  555,  557. 

*  Jones  V.  Newhall,  115  Mass.  244.  In  this  opinion  the  statutory  restric- 
tion to  cases  where  there  is  no  adequate  remedy  at  law  was  applied  with 
great  stringency  and  in  a  very  general  manner.  And  there  is  no  jurisdiction 
to  compel  the  specific  performance  by  the  vendee  of  an  agreement  to  pur- 
chase certain  stocks:  Noyes  v.  Marsh,  123  Mass.  2SG;  citing  Thorndikc  v. 
Locke,  98  Mass.  340;  Somerby  v.  Buniin,  118  Mass.  279,  287,  19  Am.  Rep. 
459;  Jones  v.  Newhall,  115  Mass.  244;  nor  to  enforce  an  agreement  to  submit 
matters  to  arbitration:     Peari  v.  Harris   121  Mass.  390. 


537  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    315 

This  language  was  afterwards  enlarged  into  the  provision 
contained  in  the  revision  of  1873,  quoted  in  the  preceding 
section:  ''  Suits  and  proceedings  for  the  enforcing  and 
regulating  the  execution  of  trusts,  whether  the  trusts  relate 
to  real  or  personal  estate."  Under  the  first  of  these  stat- 
utes the  equitable  powers  of  the  courts  were  exceedingly 
narrow.  They  held  that  their  jurisdiction  embraced  only 
trusts  expressly  created  by  the  terms  of  a  will  or  deed,  and 
they  refused  to  extend  it  by  implication  to  resulting,  con- 
structive, and  implied  trusts,  or  even  to  those  created  by 
foreign  wills.^  By  the  second  form  of  the  statute,  the  juris- 
diction over  this  subject  was,  of  course,  greatly  enlarged. 
It  embraced  not  only  cases  of  ordinary  express  trusts  cre- 
ated by  the  terms  of  a  deed  or  will,  but  assignments  for  the 
benefit  of  creditors,  charitable  trusts,  and  resulting,  im- 
plied, or  constructive  trusts,  as  recognized  by  the  doctrines 
of  equity  jurisprudence.  The  court  exercised  a  power  to 
compel  the  due  performance  of  a  trust  at  the  suit  of  the 
beneficiary,  and  to  give  construction  to  an  instrument  creat- 
ing a  trust,  and  to  define  the  nature  of  a  trust,  and  direct 
the  trustees  in  the  discharge  of  their  fiduciary  duties,  and 
to  appoint  trustees.  But  still  the  jurisdiction  was  held  not 
to  be  commensurate  in  its  extent  with  that  general  power 
over  trusts  belonging  to  the  unlimited  system  of  equity 
jurisprudence,  and  possessed  by  the  English  court  of  chan- 
cery. The  statutory  grant  was  restricted  by  the  clause  con- 
fining its  operation  to  cases  where  there  was  no  adequate 
remedy  at  law.  The  Massachusetts  courts  have  therefore 
denied  the  existence  of  an  equitable  jurisdiction  even  in 
cases  of  trust,  where  the  substantial  relief  would  be  the 
payment  of  money  due  under  a  trust  relation,  which  could 
be  recovered  by  an  action  at  law  for  money  had  and 
received.^ 

1  Black  V.  Black,  4  Pick.  234,  236  (implied  and  resulting  trusts);  Hunt 
V.  Maynard,  6  Pick.  489  (no  trust  created  by  a  mortgage  in  favor  of  the 
mortgagor)  ;  Campbell  v.  Sheldon,  13  Pick.  8   (trust  created  by  a  foreign  will). 

2Dimmock  v.  Bixby,  20  Pick.  3G8,  372  (assignment  for  the  1  cnefit  of 
creditors)  ;  Wright  v.  Dame,  22  Pick.  55;  National  Mahaiwe  Bank  v.  Barry, 


■§    316  EQUITY   JUKISPRUDENCB.  538 

§  316.  Mortgages. —  The  earliest  grant  of  an  equitable 
jurisdiction,  continued  in  the  General  Laws  of  1873,  pro- 
vides merely  for  the  redemption  and  foreclosure  of  mort- 
gages, although  a  later  statute  adds  "  cases  of  the  convey- 
ance or  transfer  of  real  estate  in  the  nature  of  mortgage." 
It  has  been  decided  that  the  former  of  these  clauses  is  con- 
fined in  its  operation  to  mortgage  deeds  by  which  the  legal 
estate  is  conveyed  to  the  mortgagee  according  to  the  com- 
mon-law theory;  and  the  court  has  repeatedly  denied  the 
existence,  by  implication  from  this  or  other  statutory 
grants,  of  any  jurisdiction  to  enforce  or  redeem  equitable 
mortgages  or  equitable  liens.^    Of  the  power  to  redeem  or 

125  Mass.  20  (implied  trust)  ;  Parker  v.  May,  5  Cush,  336;  Harvard  College 
V.  Society  for  Theological  Education,  3  Gray,  280,  282;  Drury  v.  Inhabitants 
of  Natick,  10  Allen,  169;  Jackson  v.  Phillips,  14  Allen,  539,  593  (charitable 
trusts);  Sears  v.  Hardy,  120  Mass.  524  (resulting  trust).  The  following 
are  cases  of  express  trusts  under  a  deed  or  will,  or  of  the  construction  of  a 
■will  creating  trusts:  First  Congregational  Society  v.  Trustees,  etc.,  23  Pick. 
148;  Hooper  v.  Hooper,  9  Cush.  122,  127;  Bowditch  v.  Banuelos,  1  Gray,  220, 
228,  per  Shaw,  C.  J.;  Treadwell  v.  Cordis,  5  Gray,  341,  348;  Russell  v. 
Loring,  3  Allen,  121,  125,  per  Dewey,  J.  But  under  this  statutory  grant 
it  was  held  that  there  was  no  jurisdiction  over  a  case  of  fraudulent  con- 
veyance of  his  land  by  a  debtor  on  the  ground  of  a  resulting  or  constructive 
trust  arising  therefrom  in  favor  of  the  defrauded  creditors:  Whitney  v. 
Stearns,  11  Met.  319;  nor  a  jurisdiction  to  enforce  a  mere  equitable  lien 
or  mortgage  on  the  ground  of  an  implied  trust:  Clarke  v.  Sibley,  13  Met.  210; 
nor  to  enforce  performance  of  an  express  trust  created  by  a  foreign  will: 
Campbell  v.  Wallace,  10  Gray,  162,  163;  nor  to  enforce  a  parol  trust:  Buck 
v,  Dowley,  16  Gray,  555,  557.  Finally,  in  Frue  v.  Loring,  120  Mass.  507, 
the  court  decided  that  there  was  no  equitable  jurisdiction  to  recover  an  amount 
of  money,  where  the  liability  grew  out  of  a  trust  or  trust  relation,  since  the 
legal  remedy  by  action  for  money  had  and  received  was  adequate.  Under  its 
general  jurisdiction  over  trusts  the  court  may  appoint  a  trustee,  although 
no  express  provision  for  an  appointment  is  made  by  the  statute,  nor  is 
contained  in  the  instrument  creating  the  trust:  In  re  Eastern  R.  R.,  120 
Mass.  412;  citing  Bowditch  v.  Banuelos,  1  Gray,  220,  228;  Bailey  v.  Kil- 
burn,  10  Met.  170,  43  Am.  Dec.  423;  Winslow  v.  Cummings,  3  Cush.  358; 
Felch  V.  Hooper,  119  Mass.  52;  Parker  v.  Parker,  118  Mass.  110;  Ellis  v. 
Boston,  H.  &  E.  R.  R.,  107  Mass.  1 ;  and  see  also  Attorney-General  v.  Barbour, 
121  Mass.  508. 

1  Kelleran  v.  Brown,  4  Mass.  443,  444,  per  Parsons,  C.  J.;  Eaton  v. 
Green.  22  Pick.  520,  529,  per  Wilde,  J.;  Clarke  v.  Sibley,  13  Met.  210,  214, 
per  Wilde,  J. 


539  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    317 

to  foreclose  legal  mortgages,  there  was  no  question.^  This 
narrow  jurisdiction  has,  beyond  a  doubt,  been  enlarged  by 
the  later  enactment  above  mentioned.  Thus  it  is  held  that 
the  court  may,  in  a  proper  equitable  suit  for  that  purpose, 
declare  a  deed  of  land  absolute  on  its  face  to  be  a  mortgage, 
and  decree  a  redemption  and  reconveyance.^ 

§  317.  Creditors'  Suits. —  The  power  to  aid  creditors  in 
reaching  the  property  of  their  debtors  is  given  by  the  stat- 
ute in  very  broad  terms.  In  addition  to  the  ordinary 
"  creditors'  suits  "  by  judgment  creditors  whose  execu- 
tions have  been  returned  unsatisfied,  for  the  imrpose  of 
reaching  equitable  assets  or  impeaching  fraudulent  trans- 
fers, it  is  held  that  a  suit  may  be  maintained  by  a  creditor 
to  reach  any  property,  interest,  or  right,  legal  or  equitable, 
of  his  debtor,  which  cannot  be  come  at  so  as  to  be  attached 
or  taken  on  execution,  even  though  the  complainant  has  not 
exhausted  his  legal  remedies,  nor  put  his  demand  into  the 
form  of  a  judgment.^ 

2  Saunders  v.  Frost,  5  Pick.  259,  267,  16  Am.  Dec.  394,  per  Parker, 
C.  J.;  Boyden  v.  Partridge,  2  Gray,  190  (suit  to  redeem  a  mortgage  and  to 
eet  aside  a  release  of  the  equity  of  redemption  obtained  by  fraud)  ;  Shaw  v. 
Norfolk  Co.  R.  R.,  5  Gray,  162,  182  (foreclosure  of  a  railroad  mortgage); 
Putnam  v.  Putnam,  4  Pick.  139,  140,  per  Parker,  C.  J.  (redeeming  a  mort- 
gage by  a  bill  of  revivor). 

In  King  v.  Bronson,  122  Mass.  122,  the  jurisdiction  to  set  aside  a  sale  of 
the  mortgaged  premises  made  under  a  power  of  sale  contained  in  the  mortgage, 
and  to  redeem,  was  fully  admitted,  but  the  relief  was  refused  on  the  facts. 
Where  a  mortgage  is  given  to  secure  an  indebtedness  arising  from  an  agree- 
ment illegal,  as  being  in  violation  of  the  bankrupt  law  and  in  fraud  of 
other  creditors,  the  mortgage  itself  is  also  tainted  with  the  illegality,  and 
the  mortgagee  can  maintain  no  suit  to  redeem  a  prior  mortgage:  Blasdel  v. 
Fowle,  120  Mass.  447,  21  Am.  Rep.  533.  With  respect  to  the  foreclosure 
and  redemption  of  mortgages  of  personal  property  under  the  Massachu- 
setts statutes,  see  Burtis  v.  Bradford,  122  Mass.  129,  131;  Bushnell  v.  Avery, 
121  Mass.  148;  Boston,  etc.,  Iron  Works  v.  Montague,  108  Mass.  248. 

SHassam  v.  Barritt,  115  Mass.  256.  The  relief  was  refused  on  the  facts, 
but  the  jurisdiction  was  fully  adniitted. 

1  Bresnihan  v.  Sheehan,  125  Mass.  11  (1878).  A  wife  secretly  accumu- 
lated her  husband's  wages  placed  in  her  hands  for  safe-keeping,  and  used 
the  amount,  with  other  money  of  her  own,  in  the  purchase  of  a  piece  of 
land,  taking  the  title  in  her  own  name.  Held,  that  the  husband  had  an  equi- 
table interest  in  the  land,  and  a  creditor  could  maintain  the  suit  described 
in  the  text.     Colt,  J.,  said:     "A  creditor  may  maintain  a  bill  in  equity  to 


§    318  EQUITY    JUBISPRUDENCE.  540 

§  318.  Fraud. —  For  a  considerable  time  there  was  no 
statutory  grant  of  any  jurisdiction  expressly  on  the  ground 
of  fraud;  but  subsequently  the  provision  was  adopted  in 
broad  terms,  which  is  now  found  in  the  General  Laws  of 
1873,  namely,  ''  cases  of  fraud."  Prior  to  this  statute,  the 
courts  uniformly  denied  the  existence  of  an  authority  to 
administer  equitable  rights  or  remedies  directly  growing 
out  of  fraud,  and  they  only  dealt  with  fraud  as  it  arose  in- 
cidentally in  cases  belonging  to  some  other  head  of  equi- 
table jurisdiction.^  Full  jurisdiction  was  undouDtedly  given 
by  the  subsequent  statute  m  "  cases  of  fraud;  "  but  the 
qualifications  stated  in  a  former  paragraph  concerning 
**  trusts  "  will  apply  to  it  with  equal  force.  The  exercise 
of  the  jurisdiction  has  been  limited  by  the  clause  so  often 
quoted,  and  the  courts  have,  until  quite  recently,  shown  a 
strong  tendency  to  confine  it  within  narrow  bounds.^ 

reach  any  property,  right,  title,  or  interest,  legal  or  equitable,  of  the  debtor 
which  cannot  be  come  at  to  be  attached  or  taken  on  execution.  He  may  thus 
reach  the  equitable  assets  of  his  debtor  without  having  exhausted  his  remedies 
at  law  or  reduced  his  claim  to  a  judgment;  "  citing  Tucker  v.  McDonald, 
105  Mass.  423.  With  respect  to  "  creditors'  suits,"  ordinarily  so  called,  Trow 
V.  Lovett,  122  Mass.  571,  decides  that  a  judgment  creditor  who  has  not  is- 
Bued  an  execution  does  not  by  filing  a  creditor's  bill  under  the  statute  of 
1875  (General  Laws,  quoted  in  preceding  section),  to  reach  land  fraudu- 
lently conveyed  by  his  debtor,  acquire  a  lien  thereon.  In  Massachusetts  a 
judgment  does  not  create  a  lien  on  land.  To  create  an  equitable  lien  upon 
land  of  the  debtor  fraudulently  transferred,  the  creditor  must  exhaust  hi* 
legal  remedies,  or  must  at  least  issue  an  execution:  Wiggin  v.  Heywood,. 
118  Mass.  514;  the  same  rule  as  that  laid  down  in  Beck  v.  Burdett,  1  Paige,. 
305,  19  Am.  Dec.  436;  Crippen  v.  Hudson,  13  N.  Y.  161;  Jones  v.  Green,  1 
Wall.  330. 

In  Massachusett»,  land  conveyed  away  by  a  debtor  in  fraud  of  his  cred- 
itors can  be  attached  and  taken  on  execution.  Prior  to  the  act  of  1875^ 
above  mentioned,  this  was  the  only  mode  of  reaching  such  property,  and 
there  was  no  jurisdiction  to  maintain  a  suit  in  equity,  on  behalf  of  a  cred- 
itor, to  enforce  his  demand  aguinst  the  lands:  Taylor  v.  Robinson,  7  Allen,. 
253;  Mill  River  Ass'n  v.  Claflin,  9  Allen,  101. 

1  Boydcn  v.  Partridge,  2  Gray,  190.  And  see  other  cases  cited  ante,  in  note- 
under  §  313;  Woodman  v.  Saltonstall,  7  Gush.  181;  Tliayer  v.  Smith,  9  Met. 
4G9. 

2 Jurisdiction  denied:  Bassett  v.  Brown,  100  Mass.  355;  Suter  v.  Mat- 
thews, 115  Mass.  253;  White  v.  Thayer,  121  Mass.  226,  228;  citing  Board- 
man  V.  Jackson,   119  Mass.   IGl ;   Lewis  v.  Cocks    23  Wall.  466.     In  Bassetfe. 


541  JUDICIAL,   INTERPEETATION    OF    JUEISDICTION.  §    319 

§  319.  Other  Special  Cases. —  In  addition  to  the  foregoing 
important  branches  of  equity  jurisprudence,  the  following 
are  some  of  the  other  subjects  over  which  the  statutory 
jurisdiction  has  been  exercised,  although  the  courts  have, 
in  every  instance,  steadily  adhered  to  the  principle  that  no 
equitable  jurisdiction  existed  in  cases  where  an  adequate 
remedy  could  be  obtained  by  an  action  or  proceeding  at  law. 
The  jurisdiction  has  been  upheld,  in  this  somewhat  guarded 
manner,  to  restrain  or  abate  nuisances  of  various  kinds  ;^ 

V.  Bro\vii,  100  Mass.  355,  and  White  v.  Thayer,  121  Mass.  226,  228,  it  waa 
held  that  there  was  no  jurisdiction  of  a  suit  on  behalf  of  the  grantor  to 
set  aside  a  deed  of  land  procured  from  him  by  fraud,  since  the  land  could 
be  recovered  by  an  action  at  law, —  a  vrrit  of  entry;  and  in  Suter  v.  Mat- 
thews, 115  Mass.  253,  the  court  laid  down  the  general  doctrine  that  there 
was  no  concurrent  equitable  jurisdiction  in  cases  growing  out  of  fraud  where 
the  remedy  at  law  was  adequate,  and  therefore  a  suit  could  not  be  main- 
tained to  recover  money  obtained  through  fraud. 

Jurisdiction  exercised:  Gilson  v.  Hutchinson,  120  Mass.  27;  Cheney  v. 
Gleason,  125  Mass.  166;  Smith  v.  Everett,  126  Mass.  304;  FWler  v.  Percival, 
126  Mass.  381.  In  Gilson  v.  Hutchinson,  120  Mass.  27,  a  husband  had 
conveyed  his  land  without  consideration  and  on  a  secret  verbal  trust  to 
defendant,  for  the  purpose  of  defrauding  his  wife  of  her  dower,  and  died 
before  obtaining  a  reconveyance.  His  widow  was  appointed  administratrix, 
and  at  her  suit  the  transfer  to  the  defendant  was  set  aside  and  the  title 
vested  in  the  husband's  heirs.  In  Cheney  v.  Gleason,  125  Mass.  166,  the 
plaintiff,  through  fraud  of  an  agent,  had  been  induced  to  convey  his  land 
to  A,  who  was  pri^^y  to  the  fraud,  and  to  take  in  payment  certain  securities 
which  were  worthless.  The  land  having  been  again  conveyed  to  B,  an  inno- 
cent purchaser,  the  court  sustained  a  suit  by  the  plaintiff  to  reach  a  mort- 
gage for  the  purchase  price  given  back  by  B  to  A,  and  for  damages.  In  Smith 
V.  Everett,  126  Mass.  304,  the  defendant,  by  fraudulent  representations,  pro- 
cured the  plaintiff  to  enter  into  a  copartnership  for  a  definite  period.  Held, 
that  the  court  had  jurisdiction  to  decree  a  cancellation  of  the  partnership 
agreement,  and  to  enjoin  the  defendant  from  using  the  firm  name;  and 
having  thus  obtained  jurisdiction  of  the  case,  it  would  give  full  relief  by 
ordering  a  repayment  of  all  moneys  advanced  or  expended  by  the  plaintiff 
on  account  of  the  firm.  In  Fuller  v.  Percival,  126  Mass.  381,  a  promissory 
note  having  been  obtained  by  fraud,  a  suit  by  the  defrauded  maker  was  sus- 
tained to  enjoin  the  payee  from  transferring  the  note,  and  to  compel  its 
surrender  and  cancellation.  Tlie  court,  by  these  decisions,  has  certainly  shown 
a  much  more  liberal  tendency  in  the  exercise  of  its  jurisdiction. 

1  Such  as  interferences  with  water  rights,  riglits  of  way,  and  other  ease- 
ments or  servitudes:  Jenks  v.  Williams,  115  Mass.  217;  Cadigan  v.  Brown, 
120  Mass.  493;  Atlanta  Mills  v.  Mason,  120  Mass.  244;  Breed  v.  City  of 
Lynn,  126  Mass.  367;  Tucker  v.  Howard,  122  Masa.  529;  Woodward  v. 
City  of  Worcester,  121  Mass.  245. 


§   319  EQUITY   JUKISPRUDENCE.  542 

to  grant  the  remedy  of  injunction  in  a  variety  of  circum- 
stances,—  as,  for  example,  to  restrain  nuisances  and  other 
such  tortious  acts,  to  prevent  the  violation  of  contracts,  to 
prevent  the  use  and  transfer  of  securities  fraudulently  ob- 
tained, and  to  prevent  the  accomplishment  of  other  fraudu- 
lent transactions;  to  restrain  actions  or  judgments  at  law;* 
in  suits  for  an  accounting  under  the  strict  limitation  that 
an  accounting  in  equity  is  really  necessary,  because  no  ade- 
quate remedy  can  be  obtained  at  law  ;^  to  reform  deeds  and 

2  The  remedy  of  injunction  seems  to  have  been  used  by  the  Massachusetts 
courts  with  some  freedom.  To  restrain  private  nuisances:  Jenks  v.  Wil- 
liams, 115  Mass.  217;  Cadigan  v.  Brown,  120  Mass.  493;  Atlanta  Mills  v. 
Mason,  120  Mass.  244;  Woodward  v.  Worcester,  121  Mass.  245;  Tucker  v. 
Howard,  122  Mass.  529;  Breed  v.  Lynn,  126  Mass.  367;  to  restrain  unlawful 
use  of  water-power  by  a  mill-owner:  Agawam  Canal  Co.  v.  South  worth  Mfg. 
Co.,  121  Mass.  98;  to  prevent  a  violation  of  a  contract  by  which  defendant 
had  sold  his  stock  in  trade  and  good-will  to  the  plaintiff,  and  had  agreed 
not  to  carry. on  the  same  business  at  the  same  place,  under  a  liability  for 
one  thousand  dollars  as  liquidated  damages  in  case  of  a  breach:  Ropes 
V.  Upton,  125  Mass.  258;  citing  Angier  v.  Webber,  14  Allen,  211,  92  Am.  Dec. 
748;  Dwight  v.  Hamilton,  113  Mass.  175;  Boutelle  v.  Smith,  116  Mass.  Ill; 
to  restrain  the  transfer  of  negotiable  instruments  obtained  by  fraud:  Ful- 
ler V.  Percival,  126  Mass.  381;  citing  Hamilton  v.  Cummings,  1  Johns.  Ch. 
517;  Commer.  Ins.  Co.  v.  McLoon,  14  Allen,  351;  Martin  v.  Graves,  5  Allen, 
601;  to  restrain  a  fraudulent  use  of  plaintiff's  name  as  a  partner:  Smith  v. 
Everett,  126  Mass.  304;  to  restrain  an  unlawful  use  of  plaintiff's  trade-mark 
or  an  imitation  thereof:  Gelman  v.  Hunnewell,  122  Mass.  139  (the  opinion 
in  this  case  contains  an  elaborate  discussion  of  the  law  concerning  trade- 
marks, with  a  full  citation  of  authorities)  ;  to  prevent  the  use  of  a  mis- 
taken deed,  and  to  restrain  an  action  at  law  to  recover  on  its  covenants: 
Wilcox  V.  Lucas,  121  Mass.  21. 

3  Badger  v.  McNamara,  123  Mass.  117,  119.  The  jurisdiction  in  thia 
case  was  denied  upon  the  facts,  Gray,  C.  J.,  stating  the  rule  as  follows:  "In 
order  to  maintain  a  bill  in  equity  for  an  accounting,  it  must  appear  from 
the  specific  allegations  that  there  was  a  fiduciary  relation  between  the  par- 
ties, or  that  tlu>  account  is  so  complicated  that  it  cannot  be  conveniently 
taken  in  an  action  at  law.  The  gene^-al  allegation  that  the  account  is  of 
such  a  character  is  not  sufficient  to  sustain  the  jurisdiction  in  Massachu- 
setts; "  citing  Frue  v.  Loring,  120  Mass.  507;  Blood  v.  Blood,  110  Mass. 
545;  Fowle  v.  Lawrason,  5  Pet.  495;  Dinwiddie  v.  Bailey,  6  Ves.  136; 
Foley  V.  Hill,  2  H.  L.  Cas.  28;  Smith  v.  Leveaux,  2  De  Gex,  J.  &  S.  1;  Moxon 
V.  Bright,  L.  R.  4  Ch.  292.  This  suit  was  brought  by  a  consignor  of  goods 
Bent  to  be  sold  against  the  commission  merchant  for  an  account  of  the 
proceeds,  and  especially  of  the  commissions  retained;  and  it  was  held  that 
the  case  was  wholly  unlike  suits  between  partners  or  persons  between  whom 
accountB   are   settled   in   the   same    manner   as   those   of   partners,   requiring 


543  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    320 

other  written  instruments  in  which  there  was  a  mutual  mis- 
take as  to  some  matter  of  fact.^  Other  instances  in  which 
the  jurisdiction  has  been  exercised  under  special  circum- 
stances or  for  special  reliefs  are  collected  in  the  foot-note.*^ 
§  320.  Many  important  subjects,  in  respect  of  which  the 
equitable  jurisdiction  has  been  denied,  are  mentioned  in  the 
foregoing  paragraphs.  It  has  also  been  decided  that  a 
court  of  equity  either  has  no  jurisdiction,  or  will  not  exer- 
cise any,  under  the  following  circumstances,  or  for  the  fol- 

mutual  charges  and  credits,  as  in  Bartlett  v.  Parks,  1  Cush.  82;  Hallett  v. 
Cumston,  110  Mass.  32.  No  suit  for  an  accounting  growing  out  of  a  business 
or  trading  or  transaction  in  which  the  parties  were  engaged  which  is  illegal: 
Snell  V.  Dwight,  120  Mass.  9;  Dunham  v.  Presby,  120  Mass.- 285. 

4  Reforming  a  mistaken  deed:  Wilcox  v.  Lucas,  121  Mass.  21;  citing- 
Glass  V.  Hulbert,  102  Mass.  24;  3  Am.  Rep.  418;  Jones  v.  Clifford,  L.  R.  3 
Ch.  Div.  792.  But  there  is  no  equitable  jurisdiction  to  recover  back  money 
paid  through  mistake;  as  where  the  grantee,  through  a  mistake  as  to  the 
amount,  had  paid  too  large  a  sum  of  purchase-money,  it  was  held  that 
no  suit  in  equity  could  be  maintained  to  recover  back  the  excess,  since  the 
remedy  at  law  by  an  action  for  money  had  and  received  was  ample :  Pickman 
V.  Trinity  Church,  123  Mass.  1,  25  Am.  Rep.  1. 

6  Cases  "where  there  are  more  than  two  parties  having  distinct  rights  or 
interests  which  cannot  be  justly  decided  in  one  action  at  law":  Gen. 
Laws  1873,  chap.  113,  §  2,  subd.  6;  Carr  v.  Silloway,  105  Mass.  543,  549; 
Hale  V.  Cushman,  6  IMet.  425 ;  and  see  McNeil  v.  Ames,  120  Mass.  481. 
When  a  suit  in  equity  will  or  will  not  be  retained  to  assess  and  decree  pay- 
ment of  the  plaintiff's  damages,  the  special  relief  demanded  being  imprac- 
ticable: Milkman  v.  Ordway,  106  Mass.  232;  Tainter  v.  Cole,  102  Mass. 
162.  Where  the  plaintiff  was  owner  of  certain  shares  of  the  stock  of  a  cor- 
poration, and  the  certificate  thereof  was,  without  his  fault,  fraudulently 
transferred  by  means  of  a  forged  power  of  attorney,  and  was  surrendered,  and 
a  new  certificate  issued  by  the  corporation  to  the  purchaser,  such  original 
owner  may  maintain  a  suit  in  equity  against  the  corporation,  and  may  ob- 
tain a  decree  compelling  it  to  procure  a  like  number  of  shares  of  its  own 
stock,  and  to  issue  a  certificate  therefor  to  the  plaintiff,  and  to  pay  him  all 
the  dividends  which  have  accrued  thereon  in  the  meantime:  Pratt  v.  Boston, 
etc.,  R.  R.  Co.,  126  Mass.  443;  citing  Pratt  v.  Taunton  Copper  Co.,  123 
Mass.  110,  25  Am.  Rep.  37;  Machinists'  Nat,  Bank  v.  Field,  126  Mass. 
345;  Salisbury  Mills  v.  Townsend,  109  Mass.  115;  Loring  v.  Salisbury  Mills, 
125  Mass.  138;  Telegraph  Co.  v.  Davenport,  97  U.  S.  369;  Duncan  v.  Lunt- 
ley,  2  Macn.  &  G.  30,  2  Hall  &  T.  78;  Taylor  v.  Midland  R'y  Co.,  28  Beav. 
287;  8  H.  L.  Cas.  751;  Holbrook  v.  New  Jersey  Zinc  Co.,  57  N.  Y.  616. 
When  a  suit  may  or  may  not  be  maintained  for  the  purpose  of  enforcing  an 
equitable  set-off:  Spaulding  v.  Backus,  122  Mass.  553,  23  Am.  Rep.  391  (the- 
opinion  contains  an  elaborate  discussion  of  the  doctrine,  with  a  full  cita- 
tion and  review  of  the  authorities). 


§    320  EQUITY   JURISPRUDENCE.  544 

lowing  purposes:  Over  lost  deeds ;^  in  suits  brought  by 
individual  inhabitants  or  tax-payers  to  compel  the  perform- 
ance of  a  public  duty  by  a  municipal  corporation,  or  by  its 
officers ;  nor  to  restrain  the  collection  of  a  tax  on  the  ground 
of  its  illegality;^  in  administration  suits,  unless  under 
special  circumstances;^  in  suits  brought  by  the  assignee  of 

1 "  This  court  has  no  equity  jurisdiction  in  cases  of  lost  deeds,  inde- 
pendently of  some  other  ground  of  equity  jurisdiction":  Campbell  v.  Shel- 
don, 13  Pick.  8. 

2  Carlton  v.  City  of  Salem,  103  Mass.  141.  And  see  Attorney-General  v. 
Salem,  103  Mass.  138.  (This  case  construes  the  statute  (Gen.  Stats.,  chap.  18, 
§  79),  which  gives  authority  to  the  court  to  interfere  under  special  circum- 
stances at  the  suit  of  not  less  than  ten  taxable  inhabitants,  and  to  restrain 
the  illegal  acts  of  municipal  authorities  in  the  matter  of  taxation  or  creat- 
ing a  public  debt,  but  restricts  the  operation  of  the  statute  to  the  exact 
condition  of  facts  mentioned  by  it;  any  such  jurisdiction,  independently  of  the 
statute,  is  emphatically  denied).  No  suit  in  equity  can  be  maintained 
by  a  trustee  against  two  towns  to  determine  in  which  one  of  them  he 
is  taxable:  Macy  v.  Nantucket,  121  Mass.  351;  and  there  is  no  jurisdiction 
in  equity  to  determine  whether  or  to  whom  a  tax  is  due,  nor  to  restrain  it3 
collection.  The  only  remedy  for  an  illegal  tax  is  for  the  persons  to  pay  it, 
and  sue  the  town  or  city  at  law,  in  order  to  recover  it  back:  Loud  v. 
Cliarlestown,  99  Mass.  208;  Norton  v.  Boston,  119  Mass.  194. 

3  There  is  no  equitable  jurisdiction  to  compel  an  administrator  to  account 
or  for  the  final  accounting  and  settlement  of  decedents'  estates,  except  un- 
der special  circumstances,  where  adequate  relief  cannot  be  obtained  in  the 
court  of  probate:  Wilson  v.  Leishman,  12  Met.  316.  The  court  said:  "It 
was  not  the  intention  of  the  legislature,  by  conferring  equity  powers  upon 
this  court,  to  take  away  or  to  intrench  upon  the  jurisdiction  of  the  probate 
court  in  the  settlement  of  estates,  but  distinctly  to  enable  this  court,  among 
other  things,  to  enforce  and  regulate  the  execution  of  trusts,  whether  re- 
lating to  real  or  personal  estate."  After  showing  that  all  the  facts  of  this 
case  came  within  the  express  powers  conferred  upon  the  probate  court,  and 
all  the  relief  asked,  both  of  an  accounting  and  of  a  discovery  of  moneys 
concealed  by  the  widow,  could  be  efTectually  given  by  that  tribunal,  the 
opinion  adds:  "It  is  true  that  this  court  is  expressly  authorized  to  hear 
and  determine  in  equity  '  all  suits  and  proceedings  for  enforcing  and  regulat- 
ing the  execution  of  trusts,  whether  the  trust  relate  to  real  or  personal 
estate.'  It  is  also  true  that  a  court  having  general  equity  jurisdiction  will 
treat,  as  a  trustee,  an  administrator  who  has  property  in  his  hands  for  the 
parties  entitled  according  to  the  statutes  of  distribution,  on  the  ground  that 
the  property  thus  held  is  a  trust,  and  the  enforcing  of  a  distribution  of  it  is 
t)ie  execution  of  a  trust."  But  tliis  latter  branch  of  the  jurisdiction  over 
trusts  is  not  possessed  by  the  courts  of  Massachusetts  as  a  part  of  their 
limited  equitable  powers;  it  has  been  expressly  conferred  upon  the  probate 
courts,  and  will  not  be  assumed  nor  exercised  by  means  of  any  enlarged 
interpretation   put   upon   tlic   language  of  the  statutes.     See  also   Southwick 


545  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    320 

a  legal  thing  in  action  to  recover  the  amount  due  upon  such 
demand,  where  an  action  at  law  can  be  maintained  in  the 
name  of  the  assignor;*  and  in  other  instances  collected  in 
the  foot-note."^ 

V.  Morrell,  121  Mass.  520;  Sykes  v.  Meacham,  103  Mass.  285.  A  creditor  can- 
not maintain  a  suit  in.  equity  against  the  administrator  of  his  debtor,  to 
recover  a  debt  barred  by  the  statute  of  limitations,  on  the  ground  that 
he  was  a  non-resident  alien,  and  did  not  learn  of  the  debtor's  death,  etc. 

4  A  court  of  equity  will  not  entertain  a  bill  in  equity  by  the  assignee  of 
a  strictly  legal  right,  merely  upon  the  ground  that  he  cannot  bring  an  action 
at  law  in  his  own  name,  nor  unless  it  appears  that  the  assignor  prohibits 
and  prevents  such  action  being  brought  in  his  name,  or  that  an  action  in  the 
assignor's  name  would  not  afford  the  assignee  an  adequate  remedy:  Walker 
V.  Brooks,  12  Mass.  241;  citing  Hammond  v.  Messinger,  9  Sim.  327,  33?^ 
per  Shadwell,  V.  C.  The  contrary  rule  as  stated  by  Judge  Story  in  Uq. 
Jur.,  §  1057a,  and  in  Eq.  PL,  §  153,  is  shown  to  be  erroneous.  See  the 
elaborate  discussion  and  review  of  the  decisions  in  the  opinion  at  pages 
244-248. 

5  Equitable  jurisdiction  does  not  extend  to  cases  of  libel  or  slander,  or 
false  representation  as  to  the  character  or  quality  of  plaintiff's  property, 
or  as  to  his  title  thereto,  which  involves  no  breach  of  trust  or  of  contract. 
The  plaintiff's  bill  alleged  no  trust  nor  contract,  nor  use  of  plaintiff's  name, 
but  only  that  defendant  had  made  false  and  fraudulent  representations, 
oral  and  written,  that  the  articles  manufactured  by  plaintiff  were  an  in- 
fringement of  defendant's  patent  rights,  and  that  plaintiff  had  been  sued 
by  defendant  therefor,  and  that  defendant  had  threatened  with  suit  divers 
persons  who  had  purchased  plaintiff's  said  articles,  praying  an  injunction, 
€tc.  Held,  that  there  was  no  equitable  jurisdiction  in  such  a  case;  the 
jurisdiction  in  cases  of  trade-mark  rests  upon  the  right  of  property  therein: 
Boston  Diatite  Co.  v.  Florence  Manufacturing  Co.,  114  Mass.  69,  19  Am.  Rep. 
310;  Whitehead  v.  Kitson,  119  Mass.  484;  citing  Gee  v.  Pritchard,  2  Swanst. 
402,  413;  Seeley  v.  Fisher,  11  Sim.  581,  583;  Fleming  v.  Newton,  1  H.  L.  Cas. 
363,  371,  376;  Emperor  of  Austria  v.  Day,  3  De  Gex,  F.  &  J.  217,  238-241; 
Mulkern  v.  Ward,  L.  R.  13  Eq.  619.  The  opinion  of  Mai  ins,  V.  C,  in 
Springhead  Spin.  Co.  v.  Riley,  L.  R.  6  Eq.  551,  Dixon  v.  Holden,  L.  R.  7  Eq. 
488,  and  Rollins  v.  Hinks,  L.  R.  13  Eq.  355,  was  expressly  criticised  and 
rejected.  There  is  no  jurisdiction  to  compel  a  lessee,  whose  term  has  been 
sold  on  execution,  to  deliver  up  to  the  purchaser  —  the  plaintiff  —  the  counter- 
parts of  his  lease  and  subleases  which  are  recorded,  and  there  is  no  jurisdiction 
under  General  Laws,  chap.  113,  §  2,  subd.  6,  of  a  suit  by  an  assignee  in 
law  of  the  lessee's  estate  against  the  lessee  who  claims  rent  from  a  sub- 
tenant: McNeil  v.  Ames,  120  Mass.  481.  In  a  suit  for  discovery  and  re- 
lief, even  if  discovery  be  obtained,  the  relief  will  not  be  granted  when  the 
plaintiff  has  an  adequate  remedy  at  law:  Ward  v.  Peck,  114  Mass.  121, 
122.  Gray,  J.,  said :  "  This  bill  cannot  be  maintained  for  relief,  because 
the  plaintiff  has  a  plain,  adequate,  and  complete  remedy  at  law  by  an 
action  for  money  had  and  received."    The  notion  that  discovery  can  be  made 

Vol.  1  —  35 


§§    321,    322  EQUITY  JURISPRUDENCE.  546 

§  321.  Jurisdiction  Enlarged  by  Recent  Statute. —  The  par- 
tial, and  in  some  respects  much  limited,  equitable  jurisdic- 
tion which  I  have  thus  sketched  in  outline  is  without  doubt 
greatly  enlarged,  and  perhaps  rendered  complete,  by  the 
statute  of  1877,  quoted  in  the  preceding  section ;  and  several 
of  the  cases  referred  to  in  the  foregoing  paragraphs  or 
quoted  in  the  notes  might  now  be  differently  decided.  In- 
deed, the  few  decisions  made  since  that  statute,  although 
not  expressly  referring  to  its  language,  exhibit,  as  it  seems 
to  me,  a  very  evident  purpose  on  the  part  of  the  Massachu- 
setts court  to  exercise  its  equitable  jurisdiction  in  accord- 
ance with  a  much  more  liberal  and  comprehensive  theory 
than  that  which  it  formerly  held,  and  upon  which  it  has 
long  acted.^  It  is  impossible,  however,  to  state  with  any 
certainty  the  full  effect  of  this  most  recent  enactment. 

§  322.  Maine:  General  Extent  and  Nature  —  The  Statutory- 
Construction. —  The  course  of  legislation  and  of  judicial  con- 
struction in  this  state,  on  the  general  subject  of  equity  juris- 
diction, has  followed  very  clearly  after  that  of  Massachu- 
setts. The  provisions  of  the  Massachusetts  statutes  have 
been  copied  almost  identically  by  the  legislature  of  Maine, 
and  the  methods  adopted  by  the  Massachusetts  courts  have 
been  fully  accepted  by  the  judiciary  of  Maine.  At  an  early 
day  the  powers  of  the  supreme  court  to  grant  distinctively 
equitable  relief  according  to  the  modes  of  chancery  were 
extremely  narrow,  extending  to  but  one  or  two  topics  of 
minor  importance.  The  jurisdiction  was  gradually,  but 
very  cautiously,  enlarged  by  successive  acts  of  the  legisla- 
ture ;  and  these  statutes,  collected,  arranged,  and  condensed, 
form  the  chapter  77,  section  5,  of  the  revision  of  1871,  which 
is  quoted  in  the  notes  of  the  preceding  section.^    All  of  the 

the  foundation  of  a  jurisdiction  in  cases  where  no  jurisdiction  would  other- 
wiHo  have  existed,  ia  plainly  rejected  in  ]\Iassachusetts. 

§  321,  1  See,  as  illustrations,  Bresnihan  v.  Sheehan,  125  Mass.  11  (1878)  ; 
Ropes  V.  Upton,  125  Mass.  258;  Cheney  v.  Gleason,  125  Mass.  160;  Smith  v. 
Everett,  120  Mass.  304  (1878);  Fuller  v.  Percival,  126  Mass.  381  (1879); 
Pratt  V.  Uoston,  etc.,  R.  R.,   12G  Mass.  443. 

t  322,  1  See  OMile,  fi  280,  in  notes. 


547  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    32^ 

decisions,  with  very  few  exceptions,  are  the  judicial  con- 
struction given  to  these  legislative  grants  of  equitable 
powers.  This  restrictive  policy  has  recently  been  aban- 
doned. In  1874  the  legislature  of  Maine,  in  this  also  follow- 
ing the  example  of  Massachusetts,  by  a  brief  enactment,  but 
in  comprehensive  terms,  conferred  full  equity  jurisdiction 
and  powers,  with  respect  to  all  matters  where  the  remedy 
at  law  is  not  complete  and  adequate.^  We  are  thus  relieved 
from  the  necessity  of  a  thorough  and  accurate  discussion  of 
the  reported  decisions  for  the  purpose  of  ascertaining  what, 
equitable  jurisdiction  is  noiv  held  by  the  courts  of  Maine,. 
and  what  are  the  limitations  upon  it.  We  need  only  to  in- 
quire in  a  very  general  manner  what  amount  of  jurisdic- 
tion has  been  held  and  exercised  prior  to  the  enlarging  stat- 
ute of  1874,  in  order  that  the  true  meaning  and  force  of  the- 
reported  cases  as  precedents  may  be  apprehended,  and  their 
application  to  the  general  system  of  equity  jurisprudence 
may  be  understood.  I  purpose,  therefore,  to  describe  in  thfr 
briefest  manner  the  theory  of  interpretation  with  respect, 
to  its  own  equitable  powers  uniformly  acted  upon  by  the- 
supreme  court,  and  to  enumerate  the  most  important  heads 
of  equity  jurisdiction  which  it  asserted  and  exercised  under 
the  former  statutes. 

§  323.  Throughout  the  whole  series  of  decisions  ren- 
dered in  cases  arising  prior  to  the  act  of  1874,  above  men- 
tioned, the  supreme  court  of  Maine  has  constantly  denied 
the  possession  by  itself  of  a  full,  general,  equitable  jurisdic- 
tion commensurate  with  that  held  by  the  English  court  of 
chancery;  has  declared  that  its  only  equitable  powers  were 
those  conferred  in  express  terms  by  successive  statutes  of 
the  legislature;  and  in  the  interpretation  of  these  enact- 
ments, has  always  insisted  that  their  language  should  be 
strictly  construed,  and  that  no  equitable  powers  arising  by 
implication  should  be  assumed  or  exercised.  Furthermore, 
these  legislative  grants  were  all  given  under  the  limitation 
that  ''  no  adequate  and  certain  remedy  could  be  had  at 

a  See  ante,  §  286,  note. 


§    324  EQUITY   JURISPRUDENCE.  548 

law. ' '  This  limitation  has  invariably  been  regarded  as  con- 
stituting the  test  of  the  jurisdiction;  and  the  principle 
seems  to  have  been  settled  that  even  where  a  case  came 
within  the  very  terms  of  the  statute,  the  equitable  powers 
of  the  court  could  not  be  exercised  if  there  was  also  a  cer- 
tain and  adequate  remedy  at  law.  These  conclusions  are 
fully  sustained  by  the  decisions  cited  in  the  footnote.^  The 
very  few  reported  decisions  in  cases  arising  since  the  stat- 
ute of  1874  recognize  the  complete  change  in  the  legislative 
policy  shown  in  that  enactment,  and  seem  to  admit  that  the 
court  is  clothed  by  it  with  the  full  equitable  jurisdiction; 
but  the  extent  and  limits,  if  any,  have  not  yet  been  judicially 
defined.^  I  shall  now  describe  very  briefly  the  extent  to 
which  the  important  heads  of  jurisdiction  had  been  settled 
under  the  former  statutory  system. 

§  324.  Mortgages. —  The  exceedingly  cautious  and  re- 
stricted manner  in  which  the  court  was  accustomed  to  deal 
with  its  equitable  jurisdiction  is  shown  in  the  doctrines 

1  In  fact  almost  every  equity  case  decided  by  the  court  is  an  authority 
for  the  propositions  of  the  text,  but  in  the  following  the  point  was  dis- 
tinctly presented  and  determined:  Getchell  v.  Jewett,  4  Me.  350,  359,  per 
Mellen,  C.  J.;  Frost  v.  Butler,  7  Me.  225,  231,  22  Am,  Dec.  199;  French  v. 
Sturdivant,  8  Me.  24G,  251;  Coombs  v.  Warren,  17  Me.  404,  408;  Chalmers  v. 
Hack,  19  Me.  124,  127;  Danforth  v.  Roberts,  20  Me.  307;  Thomaston  Bank  v. 
Stimpson,  21  Me.  195;  Ruas  v.  Wilson,  22  Me.  207,  209;  Shaw  v.  Gray, 
23  Me.  174,  178;  Bubier  v.  Bubier,  24  Me.  42;  Chase  v.  Palmer,  25  Me. 
341;  Woodman  v.  Freeman,  25  Me.  531,  532,  543;  Pratt  v.  Thornton,  28  Me. 
355,  366,  48  Am.  Dec.  492;  Baldwin  v.  Bangor,  36  Me.  618,  524;  Farwell  v. 
Sturdivant,  37  Me.  308;  Hayford  v.  Dyer,  40  Me.  245;  Fletcher  v.  Holmes, 
40  Me.  364;  York,  etc.,  R.  R.  v.  Myers,  41  Me.  109,  119;  Fisher  v.  Shaw, 
42  Me.  32;  Tucker  v.  Madden,  44  Me.  206,  215;  McLarren  v.  Brewer,  51  Me. 
402,  407;  Stephenson  v.  Davis,  56  Me,  73;  Crooker  v.  Rogers,  58  Me.  339; 
Spofford  V.  B.  &  B.  R.  R.,  66  Me.  51;  Pitman  v.  Thornton,  65  Me.  469; 
Ricliardson  v.  Woodbury,  43  Me.  206,  210. 

2  See  Rowell  v.  Jewett,  69  Me.  293,  303.  This  suit  was  brought  to  have  a 
deed  absolute  and  unconditional  on  its  face  declared  to  be  a  mortgage.  It 
had  been  well  settled  by  a  series  of  former  decisions  that  the  court  had  no 
jurisdiction  to  grant  such  relief;  that  the  case  came  under  no  species  of 
equitable  powers  given  to  the  court.  This  ruling,  however,  was  not  followed; 
the  former  decisions  were  disregarded,  and  the  relief  was  granted,  solely  ort 
the  ground  that  full  equitable  powers  were  now  held  by  the  court.  The 
diHcuHsion  of  the  opinion  opens  with  the  following  language:  "Prior  to  the 
statute  of  1874  giving  this  court  full  equity  jurisdiction,"  etc. 


549  JUDICIAL.   INTERPKETATION    OF    JURISDICTION.  §    324 

which  were  settled  concerning  mortgages.  The  only  powers 
which  it  possessed  were  those  given  in  the  clause  expressly 
relating  to  mortgages,  and  could  not  be  enlarged  by  any 
of  the  other  more  general  provisions  conferring  jurisdiction 
in  cases  of  fraud,  trusts,  mistake,  and  the  like;  and  even 
the  powers  thus  apparently  given  in  very  terms  were 
held  to  be  restricted  by  other  mandatory  portions  of  the 
statutes.^  In  accordance  with  this  view,  it  was  settled  that 
the  court  had  no  equitable  powers  to  declare  a  deed  of  con- 
veyance of  land  absolute  on  its  face  to  be  in  fact  a  mort- 
gage;^ nor  any  power  over  equitable  mortgages  or  ven- 
dor 's  liens  either  to  enforce  them  or  to  redeem  from  them ;' 
nor  any  power  to  entertain  equitable  suits  for  the  fore- 
closure of  mortgages,  although  jurisdiction  in  '*  cases  of 
foreclosure  "  was  expressly  mentioned  in  the  clause  con- 
ferring equitable  powers,  because  a  proceeding  for  fore- 
closure was  described  and  regulated  by  other  sections  of 
the  statute.*  Some,  if  not  all,  of  these  conclusions  reached 
by  the  court  under  the  former  legislation  must  be  regarded 
as  reversed  and  abrogated  by  the  statute  of  1874.*'  The 
only  substantial  equitable  power  over  mortgages  possessed 
by  the  court  was  that  of  entertaining  suits  for  a  redemption ; 

1  See  French  v.  Sturdivant,  8  Me.  246,  251,  which  describes  the  general 
jurisdiction  in  equity  over  mortgages. 

2  Richardson  v.  Woodbury,  43  Me.  206,  210;  Thomaston  Bank  v.  Stimpson^ 
21  Me.  195. 

sphilbrook  v.  Delano,  29  Me.  410,  414;  Tliomaston  Bank  v.  Stimpson, 
21  Me.  195;  Richardson  v.  Woodbury,  43  Me.  206,  210. 

4  The  court  said  that  the  legislature  could  not  have  intended  to  provide 
for  two  different  modes  of  foreclosure, —  the  statutory  and  the  suit  in  equity, 
—  and  it  therefore  pronounced  the  clause  giving  equitable  jurisdiction  "  in 
cases  of  foreclosure  "  to  be  a  mere  nullity:  Gardiner  v.  Gerrish,  23  Me.  46,  48; 
Shaw  v.  Gray,  23  Me.  174,  178;  Chase  v.  Palmer,  25  Me.  341,  345;  Bro\vn  v. 
Snell,  46  Me.  490,  496.  In  Shepley  v.  Atlantic,  etc.,  R.  R.,  55  Me.  395,  407, 
a  special  provision  of  a  railroad  mortgage  in  favor  of  the  mortgagees  upon 
a  default  of  the  mortgagors  was  specifically  enforced. 

B  See  Rowell  v.  Jewett,  69  Me.  293,  303.  A  deeed  absolute  on  its  face  was 
held  to  be  a  mortgage,  the  decision  being  expressly  placed  upon  the  ground 
that  now,  under  this  statute,  the  court  has  a  "  full  equity  jurisdiction,"  the 
earlier  cases  and  the  former  rule  having  been  the  results  solely  of  a  lack  ol 
equitable  powers  in  the  court. 


f  §    325,   326  EQUITY   JURISPRUDENCE.  550 

and  even  that  such  a  suit  might  be  maintained,  the  plain- 
tiff must  have  fully  complied  with  certain  other  statutory 
provisions  regulating  the  mode  of  redemption.**  The  court 
seems  to  have  admitted  its  power  to  enforce  the  claim  of  a 
pledgee  of  personal  property  by  an  equitable  suit  for  a 
foreclosure  and  sale  of  the  articles  pledged  J 

§  325.  Penalties  and  Forfeitures. —  The  jurisdiction  given 
in  general  terms  by  the  statute  to  relieve  from  forfeitures 
and  penalties  seems  to  have  been  admitted  and  exercised 
^thout  abridgment,  according  to  the  settled  doctrines  of 
■equity  jurisprudence.^ 

§  326.  Specific  Performance. —  The  jurisdiction  under  the 
statute  to  compel  the  specific  performance  of  written  con- 
tracts for  the  purchase  and  sale  of  land  was  fully  admitted 
and  exercised  wherever  the  terms  of  the  agreement  were 
such  with  respect  to  fairness,  consideration,  certainty, 
reasonableness,  and  the  like,  as  to  bring  the  case  within 
the  well-settled  doctrines  of  equity  jurisprudence;  these 
doctrines  were  adopted  and  acted  upon  as  regulating  the 
jurisdiction.^    It  was  held,  however,  that  the  court  had  no 

§  324,  6  Pitman  v.  Thornton,  65  Me.  469;  Shaw  v.  Gray,  23  Me.  174,  178; 
Fanvell  V.  Sturdivant,  37  Me.  308;  York,  etc.,  R.  R.  v.  Myers,  41  Me.  109; 
Hichardson  v.  Woodbury,  43  Me.  206,  210;  Tliomaston  Bank  v.  Stimpson,  21 
;Me.  195;  Brown  v,  Snell,  46  Me.  490,  496.  With  respect  to  the  mode  of 
redemption,  who  may  redeem,  and  the  preliminaries  requisite  on  the  part  of 
the  plaintilF  as  prescribed  by  other  statutory  clauses,  see  the  following 
cases:  True  v.  Haley,  24  Me.  297;  Gushing  v.  Ayer,  25  Me.  383;  Pease  v. 
Benson,  28  Me.  336;  Roby  v.  Skinner,  34  Me.  270;  Sprague  v.  Graham,  38  Mp 
328;  Baxter  v.  Child,  39  Me.  110;  Jewett  v.  Guild,  42  Me.  246;  Mitchell 
V.  Burnham,  44  Me.  286,  302;  Stone  v.  Bartlett,  46  Me.  439;  Stone  v.  Locke, 
40  Me.  445;  Williams  v.  Smith,  49  Me.  564;  Crooker  v.  Frazier,  52  Me. 
405;  Wing  v.  Ayer,  53  Me.  138;  Pierce  v.  Faunce,  53  Me.  351;  Phillips  v. 
Lcavitt,  54  Mc.  405;  Randall  v.  Bradley,  65  Me.  43,  48;  Wallace  v.  Stevens, 
€6  Me.  190;  Dinsniore  v.  Savage,  08  Me.  191,  193;  Rowell  v.  Jewett,  69  Me. 
293;  Chamberlain  v.  Lancey,  00  Me.  230,  233. 

§  324,  7  Boynton  v.  Payrow,  67  Me.  587. 

§  325,  lEvelcth  v.  Little,  16  Me.  374;  Gordon  v.  Lowell,  21  Me.  251;  Mar- 
wick  V.  Andrews,  25  Me.  525;  Dovvnes  v.  Reily,  53  Me.  62;  Shepley  v.  Atlantic, 
etc.,  R.  R.,  55  Me.  395,  407. 

§  326,  1  Getchell  v.  Jewett,  4  Me.  350,  359,  per  Mellen,  C.  J.;  Stearns  v.  Hub- 
bard, 8  Mc.  320;  Rogers  v.  Saunders,  10  Me.  92,  33  Am.  Dec.  635;  Haskell 
V.  Allen,  23  Me.  448,  451;  Bubier  v.  Bubier,  24  Me.  42,  47;   Foss  v.  Haynes, 


551  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §    327 

snch  equitable  power  to  decree  a  specific  performance,  even 
though  the  agreement  was  in  writing,  where  the  remedy  at 
law  was  adequate, —  as,  for  example,  where  the  undertak- 
ing was  in  the  alternative,  either  to  convey  land  or  to  pay 
a  definite  sum  of  money,  not  as  a  penalty,  or  where  the  only 
relief  to  be  obtained  was  damages,^ — nor  the  power  to 
compel  the  specific  performance  of  a  verbal  agreement  for 
the  sale  of  land  on  the  ground  of  its  part  performance.* 
§  327.  Fraud. —  The  jurisdiction  to  grant  the  equitable 
reliefs  directly  arising  from  frauds  was  fully  admitted, 
since  it  was  given  in  very  general  language  by  the  statute.^ 
But  the  court  steadily  refused  to  extend  the  jurisdiction 
over  frauds  by  implication  to  other  matters  which  were  not 
within  the  express  terms  of  some  statutory  grant,  or  for 
which  there  was  an  adequate  remedy  at  law;  and  for  this 
reason  it  denied  the  existence  of  any  equitable  powers  in 
cases,  even  of  actual  fraud,  where  the  only  relief  to  be 
obtained  was  a  recovery  of  damages.^ 

31  Me.  81,  89;  Hill  v.  Fisher,  34  Me.  143,  40  Me.  130;  Fisher  v.  Shaw,  42 
Me.  32,  40;  Hull  v.  Sturdivant,  46  Me.  34,  41;  Shepley  v.  Atlantic,  etc., 
R.  R.,  55  Me.  395,  407;  Portland,  etc.,  R.  R.  v.  Grand  Trunk  R.  R.  Co.,  63 
Me.  90,  99;  Snell  v.  Mitchell,  65  Me.  48;  Chamberlain  v.  Black,  64  Me.  40; 
Roxbury  v.  Huston,  37  Me.  42;  against  grantee  of  the  vendor:  Linscott  v. 
Buck,  33  Me.  530,  534;  Fobs  v,  Haynes,  31  Me.  81,  89. 

§  32^6,  2  Contracts  in  the  alternative:  Fisher  v.  Shaw,  42  Me.  32;  relief  of 
damages:  Haskell  v.  Allen,  23  Me.  448,  451;  Marston  v.  Humphrey,  24  Me. 
613,  517.  Nor  can  the  court  decree  a  specific  performance  when  the  plaintiff 
has  already  recovered  a  judgment  at  law  upon  the  contract;  for  his  suit 
is  not  then  based  upon  an  agreement  in  writing:  Bubier  v.  Bubier,  24  Me. 
42,  47. 

§  326,  3  Stearns  v.  Hubbard,  8  Me.  320;  Wilton  v.  Harwood,  23  Me.  131,  133; 
Marston  v.  Humphrey,  24  Me.  513,  517;  Hunt  v.  Roberts,  40  Me.  187; 
Patterson  v.  Yeaton,  47  Me.  308,  315.  But  in  Chamberlain  v.  Black,  64  Me. 
40,  the  court  decreed  the  complete  specific  performance  of  an  agreement  partly 
oral  and  partly  written. 

§  327,  1  Dwinal  v.  Smith,  25  Me.  379 ;  Given  v.  Simpson,  5  Me.  303,  309 ; 
Traip  v.  Gould,  15  Me.  82;  Gardiner  v.  Gerrish,  23  Me.  46;  Sargent  v.  Sal* 
mond,  27  Me.  539,  547;  Caswell  v.  Caswell,  28  Me.  232,  236;  Foss  v.  Haynes, 
31  Me.  81,  89;  Hartshorn  v.  Fames,  31  Me.  93,  96;  Fletcher  v.  Holmes,  40  Me. 
364;  Stover  v.  Poole,  67  Me.  217;  Webster  v.  Clark,  25  Me.  313,  315;  Wood- 
man v.  Freeman,  25  Me.  531,  540. 

§  327,  2  Jurisdiction  refused  where  the  only  relief  was  damages:  Woodman 
V.  Freeman,  25  Me.  531,  540;  Piscataqua,  etc.,  Co.  v.  Hill,  60  Me.  178  j  Denny  v. 


§§    328,   329  EQUITY  JURISPRUDENCE.  552 

§  328.  Creditors'  Suits. —  Ample  authority  to  entertain 
these  suits  is  given  by  a  statute;  but,  independently  of 
this  special  enactment,  and  under  the  general  jurisdiction 
in  cases  of  fraud,  the  court  exercised  a  power  to  relieve 
judgment  creditors  against  the  fraudulent  transfers  by 
debtors  of  their  property,  either  real  or  personal.*  By 
virtue  of  other  sections  of  the  statute,  the  court  has  power 
to  give  equitable  relief  to  the  parties  interested  in  a  levy 
made  under  an  execution  upon  land  of  the  judgment  debtor  ;* 
and  also  to  redeem  lands  thus  levied  upon.^ 

§  329.  Trusts. —  The  chapter  of  the  Revised  Statutes  con- 
tains two  distinct  sections  relating  to  trusts, —  one  of  them 
in  general  terms  giving  jurisdiction  **  in  all  cases  of  trust,  "^ 
the  other  conferring  power  to  construe  wills  and  to  ad- 
minister testamentary  trusts.  With  reference  to  the  first 
and  more  general  grant,  it  was  held  in  an  early  case^ 
that,  under  a  former  provision  of  the  statute,  the  jurisdic- 
tion was  confined  to  express  trusts.*  This  construction, 
however,  no  longer  prevails.  By  the  broad  terms  of  the 
present  statute  the  jurisdiction  embraces  all  express  trusts,* 

Oilman,  26  Me.  149,  153.  The  general  jurisdiction  in  cases  of  fraud  did  not 
enlarge  the  equity  powers  of  the  court  over  mortgages:  French  v.  Sturdivant, 
8  Me.  246,  251;  nor  its  powers  to  compel  the  specific  performance  of  verbal 
contracts  for  the  sale  of  land:  Wilton  v.  Harwood,  23  Me.  131,  133;  nor  itt 
cases  of  attachment:     Skeele  v.  Stanwood,  33  Me.  307. a 

§  328,  1  Gordon  v.  Lowell,  21  Me.  251;  Webster  v.  Clark,  25  Me.  313;  Traip 
V.  Gould,  15  Me.  82;  Sargent  v.  Salmond,  27  Me.  539,  547;  Caswell  v.  Cas- 
well, 23  Me.  232,  236;  Hartshorn  v.  Eames,  31  Me.  93,  96;  Webster  v.  Clark^ 
25  Me.  313,  315. 

§  328,  2  Maine  Rev.  Stats.,  chap.  76,  §§  14,  20,  pp.  572,  573;  Warren  v.  Ire- 
land, 29  Me.  62;  Garnsey  v.  Garnsey,  49  Me.  167;  Thayer  v.  Mayo,  34  Me, 
142;  Glidden  v.  Chase,  35  Me.  90,  56  Am.  Dec.  690;  Keen  v.  Briggs,  46  Me. 
469;  Day  v.  Swift,  48  Me.  369;  Wilson  v.  Gannon,  54  Me.  384. 

§  328,  3]\laine  Rev.  Stats.,  chap.  76,  §  25;  Boothby  v.  Commercial  Bank,  30- 
Me.  301,  303. 

§  329,  1  Given  v.  Simpson,  5  Me.  303. 

§  329,  2  Morton  v.  Southgate,  28  Me.  41 ;  Pratt  v.  Thornton,  28  Me.  355,  366^ 
48  Am.  Dec.  492;  Tappan  v.  Deblois,  45  Me.  122,  131;  Cowan  v.  Wheeler, 
25  Me.  267,  43  Am.  Dec.  283. 

(a)  Tlio  present  jurifldiction  in  mat-  Taylor  v.  Taylor,  74  Me.  582;  Merrill 
terg  of  fraud  ia  much  broader.     See       v.  McLaughlin,  75  Me.  64. 


553     JUDICIAL,    INTElirRETATlON    OF    JURISDICTION.  §§    330,    331 

all  trusts  arising  by  operation  of  law,  and  recognized  by 
the  doctrines  of  equity  jurisprudence,  wlietber  resulting, 
implied,  or  constructive,^  and  charitable  trusts.'*  By  the 
other  clause  there  is  a  complete  jurisdiction  for  the  con- 
struction of  wills  which  create  any  trust  relation,  and  for 
the  execution  of  testamentary  trusts^  supervision  of  trus- 
tees, regulating  the  disposition  and  investment  of  trust 
property,  and  the  like.^ 

§  330.  Mistake  and  Accident  —  Reformation. —  The  juris- 
diction ordinarily  possessed  by  courts  of  equity  growing  out 
of  mistake  or  accident,  and  to  grant  the  remedy  of  ref  oima- 
tion  according  to  the  settled  rules  of  equity  jurisprudence, 
seems  to  have  been  fully  conferred  by  the  statute,  and  to 
have  been  freely  exercised  without  any  special  limitations.^ 

§  331.  Nuisance  and  Waste. —  Under  the  statutory  pro- 
vision concerning  these  subjects,  the  court  has  held  that  its 
jurisdiction  extends  to  all  cases  of  proper  waste  or  nuisance, 
according  to  well-settled  doctrines  of  equity  jurisprudence, 

8  Linscott  V.  Buck,  33  Me.  530,  534 ;  Roxbury  v.  Huston,  37  Me.  42 ;  Rich- 
ardson V.  Woodbury,  43  Me.  206;  Tappan  v.  Deblois,  45  Me.  122,  131;  McLar- 
ren  v.  Brewer,  51  Me.  402;  Crooks  v.  Rogers,  58  Me.  339,  342;  Russ  v. 
Wilson,  22  Me.  207,  210. 

■*  Tappan  v.  Deblois,  45  Me.  122,  131;  Preachers'  Aid  Soc.  v.  Rich,  45 
Me.  552,  559;  Howard  v.  Am.  Peace  Soc,  49  Me.  288,  306;  Nason  v.  First 
Church,  etc.,  66  Me.  100. 

5  Construction  of  wills:  Morton  v.  Barrett,  22  Me.  257,  39  Am.  Dec.  575; 
Wood  V.  White,  32  Me.  340,  52  Am,  Dec.  654  (correction  of  a  mistake  in 
the  christian  name  of  a  legatee)  ;  Howard  v.  Am.  Peace  Soc,  49  Me.  288, 
306;  Baldwin  v.  Bean,  59  Me.  481;  Richardson  v.  I^ight,  69  Me.  285, 
289;  Jones  v.  Bacon,  68  Me.  34,  28  Am.  Rep.  1;  Slade  v.  Patten,  68  Me. 
380;  Everett  v.  Carr,  59  Me.  325.  Executing  testamentary  trusts:  Morton 
V.  Southgate,  28  Me.  41;  Bugbee  v.  Sargent,  23  Me.  269;  Bugbee  v.  Sargent, 
27  Me.  338;  Tappan  v.  Deblois,  45  Me.  122,  131;  Preachers'  Aid  Soc  v. 
Rich,  45  Me.  553,  559;  Howard  v.  Am.  Peace  Soc,  49  Mc  288,  306;  Elder 
V.  Elder,  50  Me.  535;  Richardson  v.  Knight,  69  Me.  285,  289;  Nason  v. 
First  Church,  etc.,  66  Me.  100. 

1  In  most  of  these  cases  a  reformation  was  granted :  Wood  v.  White,  32 
Me.  340,  52  Am.  Dec  654  (mistake  in  name  of  a  legatee  in  a  will  corrected)  ; 
Farley  v.  Bryant,  32  Me.  474;  Tucker  v.  Madden,  44  Me.  206,  216;  Adams  v. 
Stevens,  49  Me.  362,  366;  Stover  v.  Poole,  67  Me.  218;  Jordan  v.  Stevens,  51 
Me.  78,  81  Am.  Dec.  556.  In  this  case  the  court  held  that  the  jurisdiction 
given  by  statute  was  not  confined  to  mistakes  of  fact,  and  that  a  court  of  equity 
has  power,  under  some  circumstances,  to  relieve  from  a  mistake  of  law. 


§§    332,    333  EQUITY   JURISPRUDENCE.  554 

where  the  remedy  at  law  is  inadequate,  and  where  the  plain- 
tiff's title  is  clear,  or  if  disputed  has  been  established  by  a 
recovery  at  law,  and  enables  it  to  grant  the  relief  of  abate- 
ment and  of  injunction;  but  there  is  no  jurisdiction  in 
cases  where  the  only  relief  is  a  recovery  of  damages.^ 

§  332.  Partnership,  Part  Owners,  and  Accounting. —  The 
statutes  do  not  in  terms  give  the  jurisdiction  ordinarily 
possessed  by  courts  of  equity  over  all  matters  of  account- 
ing; the  only  express  grant  of  power  is  that  contained  in 
this  subdivision  of  the  statute  relating  to  partners  and 
other  part  owners.  The  supreme  court  seems  to  have  given 
a  restricted  construction  to  the  clause,  and  to  have  con- 
fined the  equitable  jurisdiction  under  it  to  cases  between 
true  legal  partners,  or  between  joint  owners  or  co-owners 
of  real  or  personal  property,  for  the  purpose  of  determin- 
ing, by  means  of  an  accounting,  their  respective  shares,  and 
adjusting  their  mutual  claims.^ 

§  333.  Injunction. —  While  the  statute  authorizes  injunc- 
tions '*  in  cases  of  equity  jurisdiction,"  this  language, 
it  was  held,  referred  only  to  the  limited  jurisdiction  con- 
ferred upon  the  courts  of  Maine,  and  did  not  permit  an 
injunction  under  all  the  circumstances  in  which  it  may  be 
used  by  a  tribunal  clothed  with  full  equitable  powers.    The 

§  331,  1  Cases  of  nuisance:  Porter  v.  Witham,  17  Me.  292;  Androscoggin, 
etc.,  R.  R.  V.  Androscoggin  R.  R.,  49  Me.  392,  403 ;  Vamey  v.  Pope,  60  Me.  192. 
Cases  of  waste:  The  jurisdiction  is  confined  to  cases  of  technical  waste, 
and  the  statute  cannot  be  extended  by  implication  to  embrace  cases  of  tres- 
passes:    Leighton  v.  Leighton,  32  Me.  399,  402. 

§  332,  1  Cases  of  partnership:  Reed  v.  Johnson,  24  Me.  322,  325;  Woodward 
V.  Cowing,  41  Me.  9,  12,  66  Am.  Dec.  211;  ilolyoke  v.  Mayo,  50  Me.  385; 
Pray  v,  Mitchell,  60  Me.  430.  Cases  of  part  owners:  Maguire  v.  Pingree, 
30  Me.  508;  Ripley  v.  Crooker,  47  Me.  370,  378,  74  Am.  Dec.  491;  Mus- 
tard V.  Robinson,  52  Me.  54;  Carter  v  Bailey,  64  Me.  458,  465,  18  Am. 
Rep.  273;  Somes  v.  White,  65  Me.  542,  20  Am.  Rep.  718.  With  respect  to 
accounting  in  general,  see  McKim  v.  Odom,  12  Me.  94;  Carter  v.  Bailey,  64  Me. 
458,  405,  18  Am.  Rop.  273." 

("■I  A  \)\U  for  an  accounting  by  the  maintainable,  since  the  remedy  at 
owners  of  a  vessel  against  tlie  master,  law  is  ample.  Bird  v.  Hall,  73  Me, 
who  had  taken  her  on  sharea,  is  not       73. 


555     JUDICIAL    INTERPRETATION    OF    JURISDICTION.   §§    334,    335 

supreme  court  has  therefore  dealt  with  injunctions  in  a 
very  cautious  and  guarded  manner.^ 

§  334.  Taxation  by  Municipal  Corporation. — A  modem  stat- 
ute gives  a  special  jurisdiction,  which  perhaps  does  not 
exist  independently  of  statutory  authority,  to  interfere  at 
the  suit  of  taxable  inhabitants,  and  prevent  counties,  cities, 
towns,  and  school  districts  from  pledging  their  credit,  lay- 
ing taxes,  or  paying  out  public  money  for  any  purpose  not 
authorized  by  law.  The  nature,  extent,  and  limits  of  this 
judicial  power  are  discussed  and  determined  in  the  cases 
collected  in  the  foot-note.^ 

§  335.  Discovery. —  Discovery  as  an  independent  source 
of  jurisdiction  is  distinctly  repudiated.  No  suit  could  there- 
fore be  maintained  for  discovery  and  relief  unless  there 
was  otherwise  a  jurisdiction  to  entertain  the  suit  for  the 
relief  alone.  Nor,  as  it  seems,  was  a  bill  of  discovery, 
properly  so  called,  without  relief  in  aid  of  an  action  or 
defense  at  law  authorized  by  the  statutory  language.  The 
only  discovery  permitted  was  in  aid  of  a  relief  which  could 
be  obtained  under  some  of  the  specified  heads  of  jurisdiction 
conferred  by  the  statute.^ 

§  333,  1  The  injunction  has  been  allowed  to  restrain  an  action  or  judgment  at 
law  on  the  ground  of  fraud,  or  mistake,  or  purely  equitable  defense,  but 
with  great  caution:  Chalmers  v.  Hack,  19  Me.  124,  127;  Cowan  v.  Wheeler, 
25  Me.  267,  282,  43  Am.  Dec.  283;  Titcomb  v.  Potter,  11  Me.  218;  Russ 
V.  Wilson,  22  Me.  207;  Devoll  v.  Scales,  49  Me.  320;  Marco  v.  Low,  55  Me. 
649;  to  restrain  waste  or  nuisance:  Porter  v.  Witham,  17  Me.  292;  Andro- 
scoggin, etc.,  R.  R.  V.  Androscoggin  R.  R.,  49  Me.  392,  403;  Vamey  v.  Pope, 
60  Me.  192;  Leighton  v.  Leighton,  32  Me.  399,  402;  and  in  extreme  cases  to 
restrain  trespasses:  Leighton  v.  Leighton,  32  Me.  399,  402;  Spofford  v. 
Bangor,  etc.,  R.  R.,  66  Me.  51.  For  cases  concerning  injunctions  in  general, 
see  Russ  v.  Wilson,  22  Me.  207;  Smith  v.  Ellis,  29  Me.  422,  425;  York, 
etc.,  R.  R.  V.  Myers,  41  Me.  109;  Morse  v.  Machias,  etc.,  Co.,  42  Me.  119, 
127;  Lewiston  Falls  Mfg.  Co.  v.  Ftanklin  Co.,  54  Me.  402. 

§  334,  1  Clark  v.  Wardwell,  55  Me.  61 ;  Johnson  v.  Thorndike,  56  Me.  32,  37 ; 
Allen  V.  Inhabitants  of  Jay,  60  Me.  124,  11  Am.  Rep.  185;  Marble  v.  Mc- 
Kenney,  60  Me.  332.  There  is  no  power  whatever  in  a  court  of  equity  to 
review  the  proceedings  of  county,  town,  or  city  officials  in  the  matter  of 
laying  out  or  establishing  roads  or  streets:  Baldwin  v.  Bangor,  36  Me.  518,  524. 

§  335,  1  Coombs  v.  Warren,  17  Me.  404,  408;  Woodman  v.  Freeman,  25  Me. 
531,  543  (no  discovery  without  relief  in  aid  of  an  action  or  defense  at  law)  ; 
Russ  V.  Wilson,  22  Me.  207,  210;   Warren  v.  Baker,  43  Me.   570,  574    (no 


§§    336,    337  EQUITY   JURISPEUDENCE.  556'- 

§  336.  Damages —  The  power  to  award  damages  in  a 
proper  case,  as  a  necessary  incident  to  other  purely  equi- 
table relief  and  in  the  same  decree,  is  fully  admitted,  and 
even  to  award  damages  alone  in  very  special  cases;  but 
the  jurisdiction  has  been  exercised  with  the  utmost  caution 
and  reserve.^ 

§  337.  Other  Special  Subjects. —  In  addition  to  the  fore- 
going general  grants  of  jurisdiction,  the  statutes  of  Maine 
contain  numerous  other  provisions  authorizing  an  equitable 
suit  and  equitable  reKef  under  the  special  circumstances- 
and  for  the  special  purposes  therein  described.^  The  most 
important  of  these  clauses  which  have  received  any  judicial 
construction  are  those  relating  to  banks  and  other  corpora- 
tions,^ and  to  the  affairs  of  railroad  companies.^  Cases 
illustrating  one  or  two  other  matters  incidentally  relating- 
to  the  equitable  jurisdiction  may  be  found  in  the  foot- 
note.^ It  is  plain  from  the  foregoing  summary  that  the 
decisions  made  by  the  supreme  court  of  Maine  are  not  safe 
guides  in  ascertaining  the  nature,  extent,  and  limits  of  the 
powers  possessed  by  tribunals  having  a  full  equitable  juris- 
diction, like  the  English  court  of  chancery,  or  the  courts  in 
many  of  our  states.    At  the  same  time  many  of  its  opinions 

jurisdiction  for  a  bill  of  discovery  alone  in  aid  of  an  action  at  law)  ;  Dins- 
more  V.  Grossman,  53  Me.  441;  Foss  v.  Haynes,  31  Me.  81. 

§  336,  1  Woodman  v.  Freeman,  25  Me.  531,  532,  543.  The  opinion  in  this  case 
contains  a  most  able,  full,  and  instructive  discussion  of  the  whole  subject  of 
damages  in  equity.  See  also  Piscataqua,  etc.,  Co.  v.  Hill,  60  Me.  178;  Haskell 
V.  Allen,  23  Me.  448,  451;  Denny  v.  Oilman,  26  Me.  149,  153.  The  supreme 
court  has  constantly  felt  itself  restricted  and  cramped  as  a  court  of  equity 
by  a  provision  in  the  state  constitution  preserving  a  right  to  trial  by  jury. 

§  337,  1  Ante,  §  286,  note. 

§  337,  2  Me.  Rev,  Stats.,  chap.  47,  §§  46,  47,  57,  74,  99;  Hewitt  v.  Adams,  50- 
Me.  271,  277;  Bank  of  Mut.  Redemption  v.  Hill,  56  Me.  385,  388,  96  Am.  Dec. 
470;  Wiswell  v.  Starr,  48  Me.  401;  American  Bank  v.  Wall,  56  Me.  167;  Dane 
V.  Young,  61  Me.  160;  Baker  v.  Atkins,  62  Me.  205;  Jones  v.  Winthrop, 
66  Me.  242. 

§  337,  3Mc.  Rev.  Stats.,  cliap.  51,  §§  10,  53;  Illsley  v.  Portland,  etc.,  R.  R. 
Co.,  56  Me.  531,  537;  In  re  Bondholders  of  York,  etc.,  R.  R.,  50  Me.  552,  564; 
Kennebec,  etc.,  R.  R.  v.  Portland,  etc.,  R.  R.,  54  Me.  173. 

S  337,  4  The  statute  of  limitations  and  lapse  of  time;  their  effects  upon  the 
exercise  of  the  jurisdiction:  Cliapnian  v.  Butler,  22  Me.  191;  Lawrence  v. 
Rokes,  61  Me.  38,  42.    Equitable  set  oil":     Smith  v.  Ellis,  29  Me.  422,  426. 


"557     JUDICIAL.   INTERPKETATION    OF    JUKISDICXION.  §§    338,    339 

dealing  with  doctrines  of  equity  jurisprudence  which,  belong 
to  branches  of  the  jurisdiction  conferred  upon  it  are  exceed- 
ingly valuable  and  instructive,  both  for  the  learning  and 
the  ability  of  their  discussions. 

§  338.  Pennsylvania. —  The  equitable  jurisdiction  in  Penn- 
sylvania, until  the  recent  legislation  quoted  in  the  last  sec- 
tion, has  been  so  peculiar,  so  unlike  that  prevailing  in  any 
•other  state,  that  I  shall  only  attempt  to  describe  it  in  a 
very  general  manner.  A  full  and  detailed  account,  with  all 
the  modes  of  operating  the  system,  can  only  be  given  by 
means  of  an  extended  examination  of  numerous  decided 
cases,  and  many  quotations  from  judicial  opinions.  I  must 
leave  the  reader  to  make  his  own  examination  of  the  cases 
cited  in  the  foot-notes,  the  perusal  of  which  will  give  him 
a  clear  notion  of  the  system  in  all  its  theory  and  practical 
working. 

§  339.  Equitable  Powers  of  the  Common-law  Courts. —  The 
-courts  of  original  general  jurisdiction  have  been  strictly 
common-law  tribunals,  and  the  common-law  forms  of  action 
have  continued  in  use  until  the  present  day.  The  equitable 
jurisdiction  prevailing  until  recently  may  be  described,  in 
one  sentence,  to  consist  of  the  adoption  by  the  courts  of  the 
doctrines  of  equity,  and  the  application  of  such  doctrines, 
in  combination  with  rules  of  the  common  law,  in  the  trial 
and  decision  of  legal  actions,  and  the  granting  of  equitable 
reliefs  so  far  as  was  possible  by  means  of  enlarging  the 
scope  and  molding  the  operation  of  the  various  common-law 
forms  of  action.  The  resulting  jurisprudence  of  the  state 
was  therefore  one  uniform  system  containing  an  adniLxture 
of  legal  and  equitable  doctrines  and  rules,  legal  and  equi- 
table rights  and  duties,  legal  remedies,  and  to  a  limited  ex- 
tent equitable  remedies.  There  was,  however,  no  power  in 
the  courts  to  entertain  a  distinctively  equitable  suit,  and  to 
render  a  decree  giving  purely  equitable  relief;  the  only 
equitable  reliefs  possible  were  those  obtainable,  sometimes 
directly,  but  more  often  indirectly,  through  the  verdict  of 
a  jury  and  the  judgment  of  the  court  thereon  in  some  com- 


§    340  EQUITY   JURISPRUDENCE.  558 

mon-law  action, —  as,  for  example,  an  action  of  ejectment^ 
or  of  covenant. 

§  340.  For  a  long  time  the  legislature  refused  not  only 
to  create  any  separate  court  of  chancery,  but  even  to  confer 
any  distinctively  equitable  powers,  with  one  or  two  trivial 
exceptions,  upon  the  courts  of  law.  The  judges  were  there- 
fore compelled,  in  order  to  prevent  a  failure  of  justice,  to 
invent  some  mode  of  administering  equity.  This  was  ac- 
complished by  the  adoption  of  the  principles,  doctrines,  and 
rules  of  equity  jurisprudence  as  a  part  of  the  law  of  the 
state.  The  decision  of  common-law  actions  was  made  to 
depend,  not  upon  the  strict  rules  of  the  common  law  alone, 
but,  as  well,  upon  the  rules  of  equity;  and  of  course  the 
scope,  object,  and  effect  of  these  actions  were  greatly  modi- 
fied. Purely  equitable  demands  were  enforced  by  legal 
actions  and  judgments ;  purely  equitable  defenses  were  per- 
mitted in  such  actions;  purely  equitable  reliefs  were,  to  a 
considerable  extent,  obtained  by  means  of  actions  at  law. 
All  this  was  accomplished  by  the  intervention  of  the  judges, 
by  the  control  which  they  exercised  over  the  action  of  juries, 
and  by  their  molding  the  judgment  entered  upon  a  verdict 
so  as  to  render  it  special  and  adapted  to  the  circumstances- 
of  the  particular  case,  and  the  equitable  rights  of  the  liti- 
gant parties.  By  these  most  admirable  contrivances  the 
evil  effects  of  ignorance  and  prejudice  in  the  legislature 
were  in  a  great  measure  obviated,  and  the  courts  were  able 
to  exercise,  in  effect,  a  wide  equitable  jurisdiction,  and  to 
incorporate  all  the  principles  and  important  doctrines  of 
equity  jurisprudence  into  the  municipal  law  of  Pennsyl- 
vania. I  have  collected  in  the  foot-note  a  number  of  case& 
to  illustrate  the  foregoing  conclusions,  and  to  explain  the 
system,  not  only  in  its  general  theory,  but  in  all  the  detail 
of  its  practical  operations.^ " 

1  Pollard  V.  Shafrer,  1  Dall.  210,  211,  1  Am.  Dec.  239;  Wikoff  v.  Coxe,  I 
Yeates,  353,  358;  Hollingsworth  v.  Fry,  4  Dall.  345,  348;  Wharton  v.  Morris, 

(a)  See  also  Russell  v.  Bau.'jhman,  etc.,  Deposit  Co.,  99  Pa.  St.  443; 
94  Pa.  St.  400;  Reiinyson  v.  llozell,  IlaH's  Appeal,  112  Pa.  St.  54;  Row- 
lOG  Pa.  St.  41^;;   Ajipeal  of  Fi.lfiity,       and  v.  Finney,  96  Pa.  St.  192;   Ken- 


559  JUDICIAIi    INTERPRETATION    OF    JURISDICTION.  §    341 

§  341.  Separate  Equity  Jurisdiction  Given  by  Statutes. — 
A  change  at  length  took  place  in  the  legislative  policy. 
The  statutes  cited  in  the  preceding  section  show  that,  as 
the  first  step,  a  few  specified  and  distinctively  equitable 
powers  were  conferred  upon  a  certain  court  of  limited 
territorial  jurisdiction.  The  court,  thus  clothed  with  this 
new  authority,  was  thereby  enabled  to  entertain  equitable 
suits  and  to  administer  equitable  reliefs,  according  to  the 
course  and  proceeding  in  chancery.  The  same  powers 
were  subsequently  given  to  other  tribunals.  In  the  progress 
of  time,  and  by  successive  enactments,  the  equitable  powers 
themselves  were  gradually  enlarged  and  multiplied,  until 
by  the  latest  statute  of  the  series,  passed  at  quite  a  recent 
date,  a  full  equitable  jurisdiction  is  granted  to  all  the  courts 
of  original  general  jurisdiction  throughout  the  state.  It  is 
settled  with  absolute  unanimity  of  decision  that  these  statu- 
tory grants  of  a  distinctive  chancery  jurisdiction,  and  the 
equity  functions  conferred  thereby,  do  not  in  the  least 
abridge,  interfere  with,  or  affect  the  powers  always  hereto- 
fore held  by  the  courts  of  applying  equitable  doctrines  and 
administering  equitable  reliefs  through  the  means  of  legal 
actions  and  as  a  part  of  the  law ;  this  peculiar  province  of 
the  courts  still  remains  unchanged  by  the  modern  legisla- 
tion. The  total  result  seems  to  be  that  the  courts  of  Penn- 
sylvania in  reality  possess  two  equitable  jurisdictions, — 

1  Dall.  124,  125;  Dorrow  v.  Kelly,  1  Dall.  142,  144;  Stansbury  v.  Marks,  4 
Dall.  130;  Ebert  v.  Wood,  1  Binn.  217,  2  Am.  Dec.  436;  Murray  v.  William- 
son, 3  Binn.  135;  Jordan  v.  Cooper,  3  Serg.  &  R.  564,  578,  579,  589;  Funk 
V.  Voneida,  11  Serg.  &  R.  109,  115;  Hawthorn  v.  Bronson,  16  Serg.  &  R.  269, 
278;  Lehr  v.  Beaver,  8  Watts  &  S.  106;  Kulm  v.  Nixon,  15  Serg.  &  R.  118, 
125;  Cope  v.  Smith's  Ex'rs,  8  Serg.  &  R.  110,  115;  Bixler  v.  Kunkle,  17 
Serg.  &  R.  298,  303;  Martzell  v.  Stauffer,  3  Penr.  &  W.  398,  401;  Patterson 
V.  Schoyer,  io  Watts,  333;  Seitzinger  v.  Ridgway,  9  Watts,  496,  498;  Cassell 
V.  Jones,  6  Watts  &  S.  452;  Torr's  Estate,  2  Rawle,  552. 

singer  v.  Smith,  94  Pa.  St.  384;  Win-  Pa.  St.  302;  Wills  v.  Van  Dyke,  109' 

penny  v.  Winpenny,  92  Pa.  St.  440;  Pa.   St.   330;   Bell  v.  Clark,   111   Pa, 

Connolly  v.  Miller,  95  Pa.  St.  513;  St.  92;  Curry  v.  Curry,  114  Pa.  St, 

Wheeling,  etc.,  R.  R.  Co.  v.  Gourley,  367;  Reno  v.  Moss,  120  Pa.  St.  49; 

99  Pa.  St.   171;  Edwards  v.  Morgan,  Wylie   v.   Mausley,    132   Pa.    St.    68; 

100  Pa.  St.  330 ;  Elbert  v.  O'Neil,  102       Barclay's  Appeal,  93  Pa.  St.  50. 


§    341  EQUITY   JUMSPEUDENCE.  560 

the  one  arising  from  their  own  judicial  action,  and  exercised 
in  combination  with  the  law,  according  to  the  methods  and 
procedure  of  common-law  actions ;  the  other  expressly  con- 
ferred by  the  statutes,  and  exercised  by  means  of  proper 
suits  in  equity,  according  to  the  methods  and  procedure  of 
the  court  of  chancery.'  I  will  merely  remark,  in  conclusion, 
that  while  the  decisions  of  the  Pennsylvania  courts  may  be 
referred  to  as  authorities  upon  the  principles,  doctrines, 
and  rules  of  equity  jurisprudence, —  and  many  of  them  are 
exceedingly  valuable  from  their  breadth  of  view, —  they  are, 
from  the  necessities  of  their  peculiar  conditions,  of  com- 
paratively little  value  upon  questions  of  the  equitable  juris- 

1  See  ante,  §  286,  note.  With  reference  to  the  amount  and  extent  of 
the  distinctively  chancery  jurisdiction  given  by  the  legislature,  the  earlier 
statutes  of  the  series  were  strictly  interpreted.  The  courts  invariably  re- 
fused to  exercise  any  powers  under  them  except  those  which  were  expressly 
conferred;  enlarging  their  jurisdiction  by  implication  was  steadily  resisted. 
Under  the  later  and  more  comprehensive  enactments,  a  full  equitable  juris- 
diction is  asserted,  subject  to  the  limitation  inherent  in  the  very  conception 
of  equity  jurisdiction,  that  an  adequate  remedy  cannot  be  obtained  at  law. 
This  limitation,  however,  is  liberally  dealt  with,  and  is  not  treated  as  having 
received  any  larger  or  more  imperative  or  restrictive  force  from  the  statute. 

I  collect  the  cases  into  two  groups:  1.  Those  which  hold  that  the  ancient 
and  peculiar  equitable  functions  of  the  court  and  the  system  of  applying 
equitable  doctrines  in  administering  the  law  remain  unaffected;  and  2.  Those 
which  deal  with  the  extent  of  chancery  jurisdiction  granted  by  the  statutes. 
The  latter  group  are  arranged  chronologically. 

1.  Cases  relating  to  the  general  effect  of  the  statutes  upon  the  former 
equity  system:  Church  v.  Ruland,  64  Pa.  St.  432,  441;  Hauberger  v.  Root, 
5  Pa.  St.  108,  112;  Robinson  v.  Buck,  71  Pa.  St.  386,  391;  Biddle  v.  Moore, 
3  Pa.  St.  161,  176;  Aycinena  v.  Peries,  6  Watts  &  S.  243,  257;  Wesley  Church 
V.  Moore,  10  Pa.  St.  273;  Painter  v.  Harding,  3  Phila.  59. 

2.  Cases  relating  to  the  extent  and  amount  of  equity  jurisdiction :  Gilder 
V.  Merwin,  6  Whart.  522,  540-543;  Dalzell  v.  Crawford,  1  Pars.  Cas.  37, 
41;  Comm.  v.  Bank  of  Pa.,  3  Watts  &  S.  184,  193;  Hagner  v.  Heyberger, 
7  Watts  &  S.  104,  lOG;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Cas.  31;  Bank  of 
Ky.   v.   Schuylkill   Bank,    1    Pars.   Cas.   181,   219;   Kirkpatrick   v.   McDonald, 

II  Pa.  St.  387,  392;  Skilton  v.  Webster,  Bright.  N.  P.  203;  Strasburgh 
R.  R.  Co.  v.  Echternacht,  21  Pa.  St.  220,  60  Am.  Dec.  49;  Mulvany  v.  Ken- 
nedy, 20  Pa.  St.  44;  Patterson  v.  Lane,  35  Pa.  St.  275;  Gallaglicr  v.  Fayette 
Co.  R.  U.,  38  Pa.  St.  102;  Ilottonstein  v.  Clement,  3  Grant  Cas.  316;  Glon- 
ingcr  v.  Hazard,  42  Pa.  St.  389,  401;  Weir  v.  Mundell,  3  Brcwst.  594; 
Doliiicrfs  Appeal,  64  Pa.  St.  311,  313;  Wheeler  v.  Philadelphia,  77  Pa.  St. 
338,  344. 


561  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    342 

diction.  This  may  at  least  be  regarded  as  true  of  the  de- 
cisions made  prior  to  the  latest  statutes  conferring  a  gen- 
eral jurisdiction  in  chancery. 

§  342.  The  Other  States  —  What  States  Included  in  This 
Division. —  In  describing  the  extent  of  the  equitable  juris- 
diction as  established  by  judicial  decision  in  the  remaining 
states,  I  may,  for  all  the  purposes  of  the  present  inquiry, 
unite  into  one  group  and  consider  together  all  those  which 
constitute  the  first,  second,  and  fourth  classes  of  the 
last  preceding  section.^  Since  in  each  of  these  classes  the 
legislation  purports  to  give  a  complete  jurisdiction  coin- 
cident with  the  entire  scope  of  the  equity  jurisprudence,  it 
will  neither  be  necessary  nor  proper  to  examine,  as  in  the 
-case  of  Massachusetts  and  the  few  other  states  composing 
the  third  class,  the  particular  departments  or  subject- 
matters  of  equitable  cognizance  enumerated  by  the  statutes 
and  coming  within  the  judicial  functions  of  the  courts ;  my 
object  will  be  accomplished  by  ascertaining  the  interpreta- 
tion which  has  been  put  upon  these  general  grants  of 
power  by  the  judiciary,  and  the  total  extent  of  jurisdiction 
which  has  been  derived  from  them  and  exercised  by  the 
tribunals  of  each  commonwealth.  It  will  be  remembered 
that  in  all  the  states  forming  the  first  class  an  equitable 
jurisdiction,  equivalent  in  extent  with  that  possessed  by  the 
English  court  of  chancery,  is  expressly  conferred;^  in 
those  forming  the  second  class,  the  same  amount  of  juris- 
diction is  implied  from  the  statutory  language;^  while  in 
those  of  the  fourth  class,  the  states  which  have  adopted  the 
reformed  American  system  of  procedure,  and  have  there- 
fore abolished  all  distinction  between  actions  at  law  and 
suits  in  equity,  a  full  authority  is  granted  to  determine  all 
■^'  civil  actions,"  whatever  be  the  nature  of  the  primary 
right  involved  or  of  the  remedy  demanded.*    In  a  few  of 

1  See  ante,  §§  284,  285,  287,  and  notes  thereunder, 

2  See  ante,  §  284,  and  note. 

3  See  ante,  §  285,  and  note. 

4  See  ante,  §  287,  and  note. 

Vol.  1  —  36 


§    343  EQUITY   JURISPRUDENCE.  562 

these  states  the  statutes  conferring  the  equitable  juris- 
diction contain  the  clause,  substantially  the  same  with  the 
sixteenth  section  of  the  United  States  Judiciary  Act,  ex- 
pressly limiting  the  existence  or  exercise  of  the  jurisdiction 
to  those  cases  in  which  the  remedy  at  law  is  inadequate." 
In  by  far  the  greater  number  of  the  states,  the  statutes 
simply  grant  the  equitable  jurisdiction  in  general  terms, 
without  adding  any  such  express  limitation  upon  its  exist- 
ence, extent,  or  exercise.® 

§  343.  Questions  Stated. —  Having  thus  recapitulated  the 
legislation  of  these  states,  I  shall  proceed,  in  the  first  place, 
to  examine  the  interpretation  given  to  it  by  the  courts ;  to 
inquire  how  far  it  has  been  accepted  and  acted  upon  to  the 
full  extent  of  the  comprehensive  language  used  by  the 
legislatures,  and  what  special  effect,  if  any,  has  been  at- 
tributed to  the  restrictive  clause  above  mentioned  found 
in  some  of  the  statutes;  and  thus  to  ascertain  whether 
a  complete  system  of  equitable  jurisdiction,  practically 
commensurate  with  that  held  by  the  English  court  of 
chancery,  has  in  fact  been  developed  by  the  judiciary 
upon  the  basis  of  these  general  statutory  grants.  I 
shall  then  endeavor  to  ascertain,  in  the  second  place, 
whether,  notwithstanding  the  adoption  of  such  a  system 
of  jurisdiction  purporting  to  be  complete,  any  important 
departments  or  subjects  originally  belonging  to  the  equity 
jurisprudence  have  been  withdrawn  by  the  operation  of 
other  statutes  from  the  cognizance  of  the  equity  courts, 
or  courts  possessing  equity  powers,  and  placed  perhaps 

0  The  language  of  this  clause  varies  sliglitly  in  different  statutes,  but  it8 
meaning  is  absolutely  the  same  in  all.  Tlie  states  in  which  it  is  found  are 
Alabama,  Arkansas,  Connecticut,  Delaware,  Oregon,  South  Carolina,  and  in 
the  earlier  legislation  of  Missouri,  but  the  later  statutes  of  that  state  seem 
to  have  omitted  it.  To  these  may  be  added,  in  order  to  complete  the  list, 
Maine,  Massachusetts,  and  New  Hampshire,  which  belong  to  the  third  class 
of  the  preceding  section. 

« In  California,  Florida,  Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Ken- 
tucky, Maryland,  Michigan,  Minnesota,  Mississippi,  Missouri  (the  latest  stat- 
utes), Nebraska,  Nevada,  New  Jersey,  New  York,  North  Carolina,  Ohio, 
Rhode  Island,  Tennessee,  Vermont,  Virginia,  West  Virginia,  Wisconsin. 


563  JUDICIAX,   INTERPRETATION    OF    JURISDICTION.  §    344 

under  the  control  of  separate  special  tribmials,  so  that 
these  departments  or  subjects  no  longer  form  a  part  of  the 
distinctive  equitable  jurisdiction  and  jurisprudence.  I  shall 
thus  be  able  to  present,  in  outline  at  least,  the  extent  and 
scope  of  the  equitable  jurisdiction  actually  existing  and 
administered  by  the  courts  in  all  the  states  composing  this 
extensive  group.  Any  more  detailed  examination  in  this 
section  would  be  not  only  unnecessary,  but  impracticable. 
§  344.  Special  Statutory  Limitation  —  Inadequacy  of  Legal 
Remedies. —  In  most  of  the  states  where  the  legislation  con- 
tains the  clause  expressly  declaring  that  the  equitable  juris- 
diction shall  not  extend  to  cases  for  which  the  legal  remedy- 
is  adequate,  the  courts  have  followed  the  example  set  by 
the  national  judiciary,  and  have  firmly  established  the 
doctrine  that  this  clause  is  simply  declaratory  of  a  principle' 
inherent  in  the  very  conception  of  equity  as  a  department, 
of  the  municipal  law;  that  it  produces  no  practical  effect, 
whatever  upon  the  extent  and  nature  of  the  general  juris- 
diction otherwise  conferred,  but  leaves  that  jurisdiction- 
exactly  what  it  would  have  been  had  the  limiting  language 
never  been  incorporated  into  the  statute.  The  clause,, 
therefore,  is  not  regarded  as  forming  any  new  and  statu- 
tory test  or  criterion  of  the  jurisdiction;  and  the  equi- 
table powers  of  the  courts  are  determined  by  the  other 
and  more  general  provisions  of  the  statutes  and  by  the 
universal  principles  of  equity  jurisprudence.  The  equi- 
table jurisdiction  in  these  states  is  held  to  be  a  complete 
and  comprehensive  system,  except  so  far  as  it  may  have 
been  abridged,  with  respect  to  particular  branches  or  sub- 
jects, by  the  restrictive  operation  of  other  statutes.^    In  a 

1  The  decisions  by  the  courts  of  difTerent  states  which  sustain  the  fore- 
going proposition  of  the  text  are  collected  in  this  note. 

Oregon.— Howe  v.  Taylor,  6  Oreg.  284,  291,  292.  See  also  Wells,  Fargo  & 
Ck).  V.  Wall,  1  Oreg.  295;  Hatcher  v.  Briggs,  6  Oreg.  31,  41. 

Alabama.— Waldron  v.  Simmons,  28  Ala.  629,  631-633.  The  court,  in 
commenting  upon  and  construing  section  602  of  the  Alabama  code  (quoted 
in  the  preceding  section,  in  note  under  section  285 ) ,  hold  that  the  subdivision  4 
refers  to  the  time  when  the  code  itself  was  adopted,  and  the  equitable  juris- 
diction is  to  be  tested  by  its  existence  at  that  time,  and  if  it  then  existed. 


§    344  EQUITY   JUEISPEUDENCB.  564 

very  few  states,  however,  the  narrower  mode  of  interpreta- 
tion, similar  to  that  which  long  prevailed  in  Massachusetts, 
has  heen  adopted.  The  clause  is  treated  as  creating  a  statu- 
tory, new,  and  effective  measure  of  the  equitable  jurisdic- 
tion, restricting  its  operation  and  preventing  its  exercise 
in  any  cases  for  which  there  is  an  adequate  remedy  at  law, 
even  though  such  cases  were  undoubtedly  embraced  within 
the  jurisdiction  according  to  its  original  unabridged  extent 
and  nature.^ 

has  not  been  ousted  by  any  laws  subsequently  passed.  With  respect  to  the 
entire  section  602,  the  court  say  (p.  633):  "Our  conclusion  is,  that  the 
first  subdivision  of  section  602  is  but  the  adoption  of  an  existing  rule;  that 
the  second  and  third  subdivisions  are  modifications  by  way  of  enlargement 
of  the  system  of  chancery  jurisprudence  and  jurisdiction  which  had  been 
established  in  England  before  the  American  Revolution;  and  that  the  fourth 
subdivision  was  the  adoption  of  that  system  as  modified  by  the  second  and 
third  subdivisions  and  by  other  sections  of  the  code.  And  we  are  entirely 
satisfied  that  as  to  cases  in  which,  originally,  jurisdiction  had  vested  legiti- 
mately in  courts  of  chancery,  the  jurisdiction  ia  not  abolished  by  anything 
contained  in  section  602,  although  a  plain  and  adequate  remedy  at  law  in 
such  cases  is  provided  by  some  other  section  of  the  code,  no  prohibitory  or 
restrictive  words  being  used."  See  also,  to  the  same  general  effect,  Hall  v. 
Cannte,  22  Ala.  650;  Youngblood  v.  Youngblood,  54  Ala.  486.  In  Lee  v.  Lee, 
55  Ala.  590,  it  was  held  that  the  court  of  chancery,  as  in  England,  is  the 
general  guardian  of  all  infants  within  its  territorial  jurisdiction,  and  has 
an  original  inherent  jurisdiction  to  appoint  guardians  for  them,  and  to  con- 
trol and  remove  their  guardians,  no  matter  how  or  by  whom  appointed;  and 
this  jurisdiction  is  not  affected  by  the  statutory  jurisdiction  given  to  the 
.probate  courts. 

Arkansas. —  Hempstead  v.  Watkins,  6  Ark,  317,  356,  357,  42  Am.  Dec.  696, 
holds  distinctly  that  the  clause  is  simply  declaratory,  and  creates  no  new  rule. 

Missouri. —  Clark  v.  Henry's  Adm'rs,  9  Mo.  336,  339,  holds  that  courts  of 
equity  having  original  jurisdiction  under  the  general  doctrines  of  equity 
have  not  lost  that  jurisdiction  because  an  adequate  remedy  has  been  pro- 
vided by  law.  The  extent  of  the  equitable  jurisdiction  is  not  founded  on 
or  measured  by  the  Missouri  statutes,  but  by  general  usage.  The  clause  in 
question  is  held  to  be  declaratory  merely:  "This  is  a  mere  general  definition 
of  the  nature  and  character  of  chancery  courts  as  contradistinguished  from 
•courts  of  law."  See  also,  to  the  same  effect,  that  the  jurisdiction  extends 
to  all  matters  of  equitable  cognizance,  Cabanne  v.  Lisa,  1  Mo.  682;  Janney  v. 
Spedden,  38  Mo.  395;  Biihlle  v.  Ramsey,  52  Mo.  153;  Meyers  v.  Field,  37  Mo. 
434,  441  ;   Magwire  v.  Tyler,  47  Mo.  115,  128.a 

2 South  Carolina.— UaW  v.  Joiner,  1  S.  C.  186,  190,  per  Willard,  J.:  "In 
this  state,  the  exclusion  of  courts  of  equity  from  jurisdiction  in  cases  where 

(tt)  Cox  v.  Volkert,  8C  Mo.  505;  Mo.  459;  Humphreys  v.  Atlantic  Mill- 
Hank  of  Coiniuerce  v.  Chambers,  90       ing  Co.,  98  Mo.  542,  10  S.  W.  140. 


565  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    345" 

§  345.  Extent  of  the  General  Statutory  Jurisdiction. —  The 
statutes  of  the  remaining  states  composing  the  first,  second, 
and  fourth  classes  as  heretofore  arranged,  are,  with  few 
exceptions,  as  we  have  seen,  grants  of  general  equitable 
jurisdiction  described  in  somewhat  vague  terms,  but  all 
of  them  without  any  negative  language  or  express  limita- 
tion upon  the  nature  and  extent  of  this  jurisdiction.  In 
many  of  these  commonwealths  all  the  distinctive  methods 
of  procedure  belonging  to  the  English,  court  of  chancery 
had  been  borrowed  without  substantial  change,  and  they 
even  remain  in  use  to  the  present  day.    In  others,  howeverj 

an  adequate  remedy  is  conferred  at  law  rests  on  the  statute;  consequently 
a  new  remedy  at  law  operates  to  destroy  the  pre-existing  remedies  in  equity 
allowed  for  want  of  such  legal  remedy;  "  citing  Eno  v.  Calder,  14  Eich.  Eq.. 
154.1»  Upon  this  principle  it  was  held  that  the  suit  for  a  discovery  had  beeni 
abrogated  by  the  statutes  authorizing  parties  to  actions  to  be  called  as  wit- 
nesses. In  the  case  cited  (Eno  v.  Calder,  14  Rich.  Eq.  154),  Dtmkin,  C.  J.,. 
stated  the  same  rule  of  interpretation  in  the  same  terms;  but  his  remark 
Avas  a  mere  dictum,  entirely  unnecessary  to  the  decision  of  the  case,  which 
could  not,  according  to  any  theory,  have  been  sustained  as  coming  within  the- 
equity  jurisdiction,  being  a  suit  to  recover  a  simple  legal  debt  without  the 
slightest  equitable  incident  or  feature.  For  an  account  of  the  early  jurisdiction 
in  this  state,  see  Mattison  v.  Mattison,  1  Strob.  Eq.  387,  391,  47  Am.  Dec.  541. 

Connecticut. —  Norwich,  etc.,  R.  R.  v.  Storey,  17  Conn.  364,  370,  371,  holds 
that  it  is  the  fimdamental  principle  guiding  the  courts  of  Connecticut,  and 
based  upon  the  statutory  restriction,  that  equity  has  no  jurisdiction  where 
the  legal  remedy  is  adequate.  The  doctrine  was  applied  to  a  suit  for  an  ac- 
counting, and  the  rule  was  laid  down  that  the  fact  of  the  accounts  between 
the  parties  being  numerous  and  complicated  does  not  give  jurisdiction  to  a 
court  of  equity.  See  also  the  following  cases,  all  of  which  show  that  the  juris- 
diction is  confined  strictly  by  the  statutory  limitation;  they  also  determine 
the  question  whether,  under  the  statutory  distribution  of  power,  the  jurisdic- 
tion of  a  particular  case  belongs  to  the  superior  court  or  to  the  court  of 
common  pleas:  Whittlesey  v.  Hartford,  etc.,  R.  R.,  23  Conn.  421,  431; 
Stannard  v.  Whittlesey,  9  Conn.  559;  Stone  v.  Pratt,  41  Conn.  285;  Hine  v. 
New  Haven,  40  Conn.  478;  Gainty  v.  Russell,  40  Conn.  450;  Griswold  v., 
Mather,  5  Conn.  435,  438;  Hartford  v.  Chipman,  21  Conn.  488,  498;  Swift 
v.  Larrabee,  31  Conn.  225,  237;  Middleton  Bank  v.  Russ,  3  Conn.  135,  139, 
8  Am.  Dec.  1G4;  New  London  Bank  v.  Lee,  11  Conn.  112,  121,  27  Am.  Dec. 
713. 

c 

Cb)  See  also  Solomons  v.  Shaw,  25  force  given  to  the  clause  in  this  state,. 
S.  C.   112.  see  Equitable  Guarantee  &  T.  Co.  ¥» 

(c)  Delaware. —  For    the    restrictive       Donahoe  ( Del. ) ,  45  Atl.  583. 


§    345  EQUITY   JURISPRUDENCE.  566 

these  forms  and  modes  of  chancery  pleading  and  practice 
were  never  adopted;  but  in  their  stead  a  peculiar  hybrid 
system  of  administering  equitable  rights  and  interests  grew 
up,  based  partly  upon  statute  and  partly  upon  usage,  and 
resembling  as  much  the  proceedings  in  an  action  at  law  as 
those  in  a  suit  in  equity.^  It  naturally  followed  that  in 
these  last-mentioned  states  it  was  for  some  time  doubted  — 
and  indeed  seems  to  have  been  an  open  judicial  question  — 
whether  a  full  equitable  jurisdiction  was  in  fact  possessed 
by  the  courts.  Such  doubts,  however,  have  all  been  re- 
moved. The  doctrine  is  established  throughout  all  the 
•states  now  under  consideration  —  whether  the  legislation 
confers  a  jurisdiction  in  express  terms  equivalent  to  that 
held  by  the  English  chancery,  or  confers  such  a  jurisdic- 
tion by  implication,  or  in  abolishing  the  distinctions  between 
legal  and  equitable  forms  of  procedure  confers  a  jurisdic- 
;tion  to  decide  all  civil  actions  —  that  a  complete  equitable 
jurisdiction  commensurate  in  its  extent  with  that  belong- 
ing to  the  English  court  of  chancery,  and  coincident  in  its 
•operation  with  the  entire  domain  of  equity  jurisprudence, 
•exists  in  each  one  of  these  states,  is  possessed  by  some 
•designated  tribunals,  and  may  be  exercised  by  them  in  the 
.modes  of  procedure  established  or  sanctioned  by  law.^ 

1  As,  for  example,  in  Georgia,  where  suits  in  equity  were  tried  by  a  jury, 
«nd  it  was  repeatedly  held  that  the  "  chancellor "  consisted  of  the  court 
and  jury  together. 

2  For  the  sake  of  completeness,  I  shall  include  in  this  list  the  names  of 
the  states  which  have  been  particularly  described  in  preceding  paragraphs 
and  notes,  merely  referring  to  their  former  place  of  treatment. 

Alabama. —  See  ante,  §  344,  and  note, 

Arkansas. —  See  ante,  §  344,  and  note. 

California. —  The  courts  possess  all  the  powers  of  a  court  of  chancery, —  a 
full  jurisdiction  over  all  matters  of  equitable  cognizance:  Sanford  v.  Head, 
5  Cal.  297,  299;  Wilson  v.  Roach,  4  Cal.  362,  306;  Belloc  v.  Rogers,  9  Cal. 
123,  129;  Willis  v.  Farley,  24  Cal.  491,  499;  People  v.  Davidson,  30  Cal.  380, 
390;  Dougherty  v.  Creary,  30  Cal.  209,  297,  89  Am.  Dec.  116;  People  v. 
Houglitaling,  7  Cal.  348,  351;  Smith  v.  Rowe,  4  Cal.  6;  De  Witt  v.  Hays, 
2  Cal.  40.S,  408,  409,  56  Am.  Dec.  352.a 

<n)  California. —  See    also    Reay    v.       Pac.  753;  Wallace  v.  Maples,  79  Cal. 

BuLlcr,  69  Cal.  572,  579,  11  Pac.  403;       433,  21  Pac.  800;  Argucllo  v.  Bours, 

-l^uncz    v.    Morgan,    77    Cal.    427,    19       07    Cal.   447,   8    Pac.    49;    Meeker   v. 


567  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    346 

§  346.  Jurisdiction  over  Administrations. — Having  thus  de- 
scribed the  theoretically  complete  —  and  in  most  matters 
actually  complete  —  equitable  jurisdiction  existing  in  most 
of  the  states,  the  inquiry  still  remains  whether  any  branches 

Connecticut. —  See  ante,  §  344,  and  note. 

Georgia. —  The  equitable  jurisdiction  is,  in  general,  that  possessed  by  the 
court  of  chancery  in  England.  The  present  code  (§  3045)  confers  the 
jurisdiction  in  express  terms,  and  does  not  by  any  of  its  more  specific  pro- 
visions materially  change  that  jurisdiction:  Mordecai  v.  Stewart,  37  Ga. 
364,  375-377,  382;  Walker  v.  Morris,  14  Ga.  323,  325-327;  Collins  v.  Barks- 
dale,  23  Ga.  602,  610;  Williams  v.  Mclntyre,  8  Ga.  34,  42;  Beale  v.  Ex'rs  of 
Fox,  4  Ga.  404,  425,  426;  Gilbert  v.  Thomas,  3  Ga.  575,  579,  580;  Justices 
of  the  Inferior  Court,  etc.  v.  Hemphill,  9  Ga.  65,  67;  Cook  v.  Walker,  15 
Ga.  457,  466-473.b 

Illinois. —  The  general  equitable  jurisdiction  is  that  held  by  the  English 
chancery,  except  where  limited  by  an  express  statute,  or  where  some  other 
court  is  clothed  by  statute  with  exclusive  jurisdiction  over  a  particular 
matter:  Maher  v.  O'Hara,  4  Gilm.  424,  427;  Isett  v.  Stuart,  80  111.  404, 
22  Am.  Rep.  194.c 

Indiana. — A  full  equity  jurisdiction,  as  that  exercised  by  the  English  court 
of  chancery:  McCord  v.  Ochiltree.  8  Blackf.  15,  17-20  (containing  an  in- 
teresting historical  sketch  of  the  jurisdiction  during  the  territorial  period 
and   since   the   organization   of   the   state)  ;    Matlock   v.   Todd,   25    Ind.    128. 

Iowa. —  A  distinct  and  full  equity  jurisdiction  recognized  and  preserved 
by  the  constitution :  Claussen  v.  Lafrenz,  4  G.  Greene,  224 ;  Laird  v. 
Dickerson,  40  Iowa,  G65,  669;  Sherwood  v.  Sherwood,  44  Iowa,  192. 

Kansas. —  A  full  chancery  jurisdiction  is  exercised  through  the  "  civil 
action  "  over  all  matters  belonging  to  the  general  equity  jurisprudence,  al- 
though the  constitution  makes  no  mention  of  any  distinction  between  law 
and  equity  or  legal  and  equitable  powers:  Sattig  v.  Small,  1  Kan.  170,  175; 
Shoemaker  v.  Brown,  10  Kan.  383,  390. 

Kentucky. —  All  the  decisions  assume  and  recognize  the  jurisdiction  in  this 
state,  without  any  statutory  limit:  Johnson  v.  Johnson,  12  Bush,  485  (a 
full  equitable  jurisdiction  is  possessed  by  the  Louisville  chancery  court). 

Louisiana. —  While  the  superior  courts  are  said  to  have  a  general  equity 
jurisdiction,  it  is  plain  that  the  "  equity "  thus  spoken  of  is  not  exactly 
synonymous  with  the  system  of  equity  jurisprudence  administered  by  the 
court  of  chancery  in  England,  and  by  the  courts  of  the  other  states  in  which 
the  common  law  has  been  adopted.  The  term  is  used  in  the  meaning  given 
to  it  by  modern  civiliajis,  as  the  power  to  decide  according  to  natural  justice 
in  cases  where  the  positive  law  is  silent.  Thus  "  in  all  civil  matters  where 
there  is  no  express  law,  the  judge  is  bound  to  proceed  and  decide  accord- 

Dalton,    75    Cal.    154,    16    Pac.    764;  (c)  Illinois.— Howell  v.  Moores,  127 

Helm  V.  Wilson,  76  Cal.  476,  18  Pac.  111.    67,    19    N.    E.    863;    Walker    v. 

C04.  Doane,    108    111.    236;    Ide   v.   Sayer, 

(b)  Geor^^ia.  —  Markham     v.     Huflf,  129  111.  230,  21  N.  E.  810. 
72  Ga.  874. 


§    346  EQUITY   JURISPRUDENCE.  56S 

or  subjects  originally  belonging  to  this  jurisdiction  have 
been  withdrawn  from  it  by  other  statutes,  so  that  they  na 
longer  come  within  the  ordinary  cognizance  of  the  equity 
courts.    One  very  conspicuous  branch  of  the  original  juris- 

ing  to  equity.  To  decide  equitably,  an  appeal  is  made  to  natural  law  and 
reason,  or  to  received  usages,  where  positive  law  is  silent " :  Civ.  Code, 
art.  XXI.;  Clarke  v.  Peak,  15  La.  Ann.  407,  409;  Welch  v.  Thorn,  16  La. 
188,  196;  Kittridge  v.  Breaud,  4  Rob.  (La.)  79,  39  Am.  Dec.  512. 

Maine.— See  ante,  §§  322-337,  and  notes. 

Maryland. —  The  full  jurisdiction  of  the  English  chancery.  "The  chan- 
cery court  of  England  has  always  been  regarded  as  the  prototype  of  that  of 
^Maryland.  ...  As  mere  courts  of  equity  there  is  scarcely  any  difference 
between  the  court  of  chancery  of  Maryland  and  that  of  England  " :  Cunning- 
ham v.  Browning,  1  Bland,  299,  301;  Amelung  v.  Seekamp,  9  Gill  &  J.  468> 
472;  Manly  v.  State,  7  Md.  135,  146. 

Massachusetts. —  See  ante,  §§  311-321,  and  notes. 

Michigan. —  The  jurisdiction  of  the  English  court  of  chancery  is  given  in 
express  terms  by  the  statute.*! 

Minnesota. —  A  full  jurisdiction  over  all  matters  cognizable  in  courts  of 
equity,  administered  by  the  one  "  civil  action  " :  Gates  v.  Smith,  2  Minn. 
30,  32. 

Mississippi. —  A  complete  general  jurisdiction  in  equity  is  given  by  the 
constitution  and  by  the  statutes  to  the  court  of  chancery  as  the  tribunal  of 
first  resort,  and  to  the  high  court  of  errors  and  appeals  as  the  appellate  tri- 
bunal. This  jurisdiction  is  exercised  whenever  the  law  docs  not  furnish  a 
complete,  certain,  and  adequate  remedy;  but  this  limitation  is  regarded  as 
an  element  inherent  in  the  very  nature  of  the  equitable  jurisdiction  itself,  and 
not  as  a  mandatory  restriction  imposed  upon  the  court  by  statute.  The 
equitable  jurisdiction  has  always  been  asserted  and  exercised  by  the  courta 
of  Mississippi  in  as  free  and  progressive  a  manner  as  by  those  of  any  other 
Btate.  In  fact,  the  equity  system  of  Mississippi  is  much  more  complete 
than  that  to  be  found  in  many  of  the  states.  These  conclusions  are  fully 
sustained  by  the  following  decisions,  and  their  number  might  easily  be  in- 
creased: Shotwell  V.  Lanson,  30  Miss.  27;  Echols  v.  Hammond,  30  Miss.  177; 
Haynes  v.  Thompson,  34  Miss.  17;  Boyd  v.  Swing,  38  Miss.  182;  Barnes  v. 
Lloyd,  1  How.  584;  Freeman  v.  Guion,  11  Smcdes  &  M.  58,  65  (all  the  fore- 
going cases  deal  with  the  question  of  there  being  an  adequate  remedy  at 
law  or  not)  ;  Farish  v.  State,  2  How.  826,  829;  Farish  v.  State,  4  How.  170, 
175.  See  also  cases  cited  post,  §  350,  in  note,  as  to  the  jurisdiction  in  the 
administration  of  decedents'  estates. 

Missouri. —  A  full  general  jurisdiction  as  held  by  the  English  cliancery: 
Clark  V.  Henry's  Adm'r,  9  Mo.  336,  339;  Cabanne  v.  Lisa,   1  Mo.  682;   Jan- 

(<i)  A    statute    of    1887,    providing  stitutional  in  Brown  v.  Buck,  75  Mich, 

for   a   final    decision   of   questions   of  274,  13  Am.  St.  Rep.  438,  42  N.  W. 

fact  in  equity  proceedings  by  the  ver-  827,  5  L.  R.  A.  226. 

«lict   of  a   jury,   was   declared   uncon 


569  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §    346- 

diction  has  been  thus  either  expressly  or  practically  with- 
drawn in  a  great  majority  of  the  commonwealths.  No  de- 
partment of  the  equity  jurisdiction  and  jurisprudence  as 
administered  in  England  is  more  important,  or  more  fre- 

ney  v.  Spedden,  38  Mo.  395;  Biddle  v.  Ramsey,  52  Mo.  153;  Meyers  v.  Field, 
37  Mo.  434,  441;  Maguire  v.  Tyler,  47  Mo.  115,  128;  Lackland  v.  Garesehe, 
56  Mo.  267,  270. 
e 

Nebraska. — A  full  jurisdiction  administered  by  the  single  civil  action: 
Wilcox  V.  Saunders,  4  Nebr.  69. 

Nevada. — A  full  equity  jurisdiction  administered  by  the  single  civil  action 
in  all  cases  where  there  is  not  a  complete,  certain,  and  adequate  remedy 
at  law:  Champion  v.  Session,  1  Nev.  478;  Sherman  v.  Clark,  4  Nev.  138, 
97  Am.  Dec.  516;  Conley  v.  Chedic,  6  Nev.  222. 

New  Hampshire. —  See  ante,  §§  299-310,  and  notes. 

New  Jersey. — A  full  general  jurisdiction  held  and  exercised  to  the  same- 
extent  and  under  the  same  limitations  as  by  the  English  court  of  chancery. 
The  whole  course  of  decisions  in  the  chancery  court  assumes  such  a  juris- 
diction, although  it  is  not  defined  by  any  legislation,  and  seldom  by  any 
judicial  opinion:  Jackson  v.  Darcy,  1  N.  J.  Eq.  194;  Wooden  v.  Wooden, 
3  N.  J.  Eq.  429 ;  Hopper  v.  Lutkins,  4  N.  J.  Eq.  149 ;  Hoagland  v.  Township, 
etc.,  17  N.  J.  Eq.  106;  Winslow  v.  Hudson,  21  N.  J.  Eq.  172.  In  19  N.  J. 
Eq.,  at  page  577,  may  be  found  an  interesting  history  of  the  chancery  court 
in  New  Jersey,  written  by  Mr.  Chancellor  Zabriskie,  and  published  as  an  ap- 
pendix to  the  volume.  See  also  post,  §  350,  and  note,  for  decisions  concern- 
ing the  jurisdiction  in  the  administration  of  decedents'  estates. 

New  York. — An  equity  jurisdiction  commensurate  with  that  of  the  English 
chancery  is  expressly  given  by  the  legislation.  It  follows  that  the  supreme 
court,  and  the  other  tribunals  of  the  same  original  jurisdiction  with  refer- 
ence to  subject-matter,  although  somewhat  restricted  as  to  persons  within 
certain  territorial  districts,  possess  all  the  jurisdiction  which  was  held  by 
the  equity  courts  of  the  colony  at  any  time,  and  which  was  held  by  the  high 
court  of  chancery  in  England  on  the  fourth  day  of  July,  1776,  with  the  ex- 
ceptions, additions,  and  limitations  created  and  imposed  by  the  legisla- 
tion of  the  state.  This  jurisdiction  is  now  exercised,  by  means  of  the  single 
"  civil  action."  It  will  be  seen  that  the  onlj'  material  exception  or  limita- 
tion created  by  the  state  legislation  consists  in  the  practical  withdrawal 
of  the  control  of  administrators  from  the  courts  of  equity,  and  the  placing 
of  that  important  branch  of  equity  jurisprudence  under  the  cognizance  of 
the  probate  or  surrogates'  courts.  The  decisions  involving  the  general  ques- 
tion of  jurisdiction  are  exceedingly  numerous,  but  they  all  show  that  the 
equitable  powers  are  to  be  exercised  in  every  case  where  there  is  no  com- 
plete, certain,  and  adequate  remedy  at  law,  but  that  this  limitation  is  treated 
as  an  essential  element  of  the  original  jurisdiction  of  chancery,  and  not  as 
abridging  or  curtailing  that  jurisdiction:  Sherman  v.  Felt,  2  N.  Y.  186; 
Newton  v.  Bronson,   13  N.  Y.  587,  591,  67  Am.  Dec.  89;   Barlow  v.  Scott^ 

(e)  Montana. —  See    Zimmerman    v.    Zimmerman,  7  Mont.  114,  14  Pac.  665. 


§    346  EQUITY   JURISPRUDENCE.  570 

quently  demands  the  attention  of  the  chancery  courts,  than 
the  accounting,  final  settlement,  and  administration  of  the 
personal  estates  of  decedents.  A  very  large  percentage  of 
the  suits  brought  in  the  English  equity  tribunals  are  admin- 
istration suits.  I  shall  not  attempt  to  discuss  the  origin  of 
this  jurisdiction  over  administrations.  By  some  judges  it 
has  been  described  as  a  natural  outgrowth  of  the  authority 

24  N.  Y.  40,  45;  Wilcox  v.  Wilcox,  14  N.  Y.  575,  579;  Garcie  v.  Freeland, 
1  N.  Y.  228,  232,  235 ;  Burch  v.  Newbury,  10  N.  Y.  374,  387 ;  Onderdonk  v. 
Mott,  34  Barb.  106,  112;  Boyd  v.  Dowie,  65  Barb,  237,  242;  Brockway  v. 
Jewett,  16  Barb.  590,  592;  Garcie  v.  Sheldon,  3  Barb.  232;  Matter  of  Book- 
hout,  21  Barb.  348,  349;  De  Hart  v.  Hatch,  3  Hun,  375,  380;  Matter  of  Mc- 
Conihe  v.  Exchange  Bank,  49  How.  Pr.  422,  424;  Fellows  v.  Herrmans,  13 
Abb.  Pr.,  N.  S.,  1,  6;  Van  Pelt  v.  U.  S.  Metallic  Springs,  etc.,  Co.,  13  Abb. 
Pr.,  N.  S.,  325,  327.  In  Youngs  v.  Carter,  10  Hun,  194,  197,  it  was  held  that 
the  equity  jurisdiction  thus  given  "  includes  of  necessity  all  cases  properly 
comprehended  within  established  principles  of  equity  jurisprudence.  Nor 
can  the  test  of  the  jurisdiction  be  restricted  to  the  existence  of  some  definite 
precedent  for  the  action  which  may  be  brought;  the  case  need  only  fall 
within  the  limits  of  any  defined  equitable  principle;  and  equitable  principles 
are  as  broad  as  the  just  wants  and  necessities  of  civilized  society  require." 
This  is,  in  my  opinion,  a  correct  description  of  the  equitable  jurisdiction  as  it 
now  exists  in  all  the  states  of  the  three  classes  under  consideration.  Compare 
the  equally  correct  views  of  Mr.  Justice  Currey,  in  Dougherty  v.  Creary,  30 
Cal.  290,  297,  89  Am.  Dec.  116. 

North  Carolina. —  Complete  jurisdiction  exercised  according  to  the  in- 
herent limitation  when  there  is  no  certain  and  complete  remedy  at  law, 
•enforced  at  present  by  the  one  "  civil  action  " :  Glasgow  v.  Flowers,  1  Hay w. 
(N.  C.)  233;  Perkins  v.  Bullinger,  1  Hayw.  (N.  C.)  367;  Martin  v.  Spier,  1 
HayAV.  (N.  C.)  369;  Wells  v.  Goodbread,  1  Ired.  Eq.  9;  Thorn  v.  Williams,  1 
Car.  Law  Rep.  362;  Hook  v.  Fentress,  Phill.  Eq.  299,  233;  Powell  v.  Howell, 
63  N.  C.  283. 

Ohio. —  The  equitable,  jurisdiction  is  the  same  as  that  held  by  the  English 
cha,ncery.  The  early  statute  confining  the  jurisdiction  to  the  cases  where  there 
is  no  plain  and  adequate  remedy  at  law  merely  states  an  essential  rule,  and 
leaves  the  jurisdiction  in  exactly  the  same  condition  which  it  would  have 
occupied  had  there  been  no  such  express  statutory  provision:  Hulse  v. 
Wright,  Wright,  61,  05;  Bank  of  Muskingum  v.  Carpenter's  Administrator, 
Wright,  729,  732;  Critchfield  v.  Porter,  3  Ohio,  518,  522;  Oliver  v.  Pray, 
4  Ohio,  175,  192,  19  Am.  Dec.  595;  Heirs  of  Ludlow  v.  Johnson,  3  Ohio,  553, 
561,  17  Am.  Dec.  009;  Cram  v.  Green,  6  Ohio,  429,  430;  Mawhorter  v. 
Armstrong,  10  Oliio,  188;  Douglas  v.  Wallace,  11  Oliio,  42,  45;  Nicholson 
V.  Pirn,  5  Oluo  St.  25;  Lessee  of  Love  v.  Truman,  10  Ohio  St.  45,  55;  Clay- 
ton V.  Frat.  10  Ohio  St.  544,  540;  Goble  v.  Howard,  10  Ohio  St.  165.  168; 
Hugor  v.  llocd,  11  Ohio  St.  620,  635;  Dixon  v.  Caldwell,  15  Oliio  St.  412,  415, 
,80  Am.  Dec.  487. 


571  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    346 

over  trusts ;  by  others,  as  resulting  from  the  frequent  neces- 
sity of  applying  to  the  court  of  chancery  for  a  discovery  of 
assets;  by  all,  it  is  admitted  that  no  adequate  relief  could 
bo  obtained  from  the  common  law  or  the  ecclesiastical 
courts.  Whatever  be  the  correct  explanation,  the  result 
was  that  the  equitable  jurisdiction  of  administrations, 
though  often  called  concurrent,  practically  became  exclu- 
sive. 

Oregon.— See  ante,  §  344,  and  note;  Howe  v.  Taylor,  6  Oreg.  284,  291,  292; 
Wells,  Fargo  &  Co.  v.  Wall,  1  Oreg.  295;  Hatcher  v.  Briggs,  6  Oreg.  31,  41. 

South  Carolina. —  See  ante,  §  344,  and  note;  Hall  v.  Joiner,  1  S.  C.  186, 
190;  Eno  v.  Calder,  14  Rich.  Eq.  154;  Mattison  v.  Mattison,  1  Strob.  Eq. 
387,  391.  47  Am.  Dec.  541.  See  also  1  Desaus.  Eq.  lii.,  for  a  sketch  of  the 
chancery  jurisdiction  in  this  state. 

Tennessee. — A  complete  general  equitable  jurisdiction  exercised  under  the 
inherent  limitation  that  no  certain  and  adequate  remedy  can  be  had  at 
law:  Dibrell  v.  Eastland,  3  Yerg.  533,  535;  University  v.  Cambreling,  6  Yerg. 
79,  84;   Porter  v.  Jones,  6  Cold.  313,  317;  Almony  v.  Hicks,  3  Head,  39,  42. 

Texas. —  There  is  not  in  the  jurisprudence  of  this  state  any  clear  line  of 
distinction  between  "  law "  and  "  equity,"  either  with  reference  to  the  rulea 
which  define  and  determine  primary  rights  and  duties,  or  those  which  regulate 
remedies  and  procedure.  Although  the  principles  of  the  common  law  have 
been  adopted  by  statute,  yet  they  are  blended  with  and  modified  by  equity. 
This  "  equity  "  seems  in  part  to  be  the  natural  justice  of  the  civilians,  but 
also  in  large  part  the  equitable  jurisprudence  developed  by  the  English 
court  of  chancery.  It  may  with  accuracy  be  said  that  the  courts  of  Texa3 
have  full  jurisdiction  to  recognize  and  give  effect  to  any  principles  and 
doctrines  of  the  equity  jurisprudence  to  maintain  any  equitable  rights,  and 
to  grant  any  equitable  remedies.  All  rights  and  remedies,  whether  legal  or 
equitable,  are  administered  together  by  one  action  and  in  the  same  modes 
of  procedure.  These  conclusions  will  be  found  fully  sustained  by  the  fol- 
lowing decisions,  and  are  assumed  or  implied  in  a  great  number  of  other 
cases:  Ogden  v.  Slade,  1  Tex.  13,  15;  Smith  v.  Clopton,  4  Tex.  109,  113; 
Spann  v.  Stern's  Administrators,  18  Tex.  556;  Soguin  v.  Maverick,  24  Tex. 
526,  532,  76  Am.  Dec.  117;  Herrington  v.  Williams,  31  Tex.  448,  460,  461; 
Jones  V.  McMahan,  30  Tex.  719,  728;  Newson  v.  Chrisman,  9  Tex.  113,  117; 
Smith  V.  Smith,  11  Tex.  102,  106;  Coles  v.  Kelsey,  2  Tex.  541,  553,  47 
Am.  Dec.  661;  Carter  v.  Carter,  5  Tex.  93,  100;  Wells  v.  Barnett,  7  Tex.  584, 
686,  587;  Purvis  v.  Sherrod,  12  Tex.  140,  159,  160. 

Vermont. —  The  decisions  assume  a  full  general  equitable  jurisdiction,  with 
perhaps  a  somewhat  greater  weight  given  to  the  limitation  that  there  is 
no  adequate  remedy  at  law  than  is  given  to  it  by  the  courts  of  many  other 
states:     Barrett  v.  Sargent,  18  Vt,  365,  369. 

Wisconsin. — A  full  jurisdiction  in  all  matters  of  equitable  cognizance,  ad- 
ministered by  the  "  civil  action  " :  Janesville  Bridge  Co.  v.  Stoughton,  1  Pinn. 
667;  Danaher  v.  Prentiss,  22  Wis.  311. 


§§    347,   348  EQUITY   JURISPKUDENCE.  572 

§  347.  Probate  Courts. —  From  a  very  early  period  of  our 
history  the  policy  has  prevailed  throughout  the  states  of 
legislating  with  respect  to  the  subject  of  administrations. 
This  policy  has  been  pursued  with  such  uniformity  and  to 
such  an  extent,  that  in  all  the  states,  I  believe  without  ex- 
ception, special  tribunals,  unknown  to  the  ancient  judicial 
system  of  England,  have  been  created,  under  different 
names, —  probate  courts,  surrogates'  courts,  orphans^ 
courts, —  which  possess  a  statutory  jurisdiction  over  alt 
matters  of  probate  and  administration,  the  proof  of  wills^ 
the  appointment  of  executors  and  administrators,  the  ac- 
counts of  executors  and  administrators,  the  final  settlement 
and  distribution  of  the  estates  of  deceased  persons,  both 
testate  and  intestate,  and  many  other  kindred  subjects. 
Not  only  have  such  courts  been  established,  but  in  very 
many  states  the  doctrines  and  rules  of  the  law  regulating 
the  administration  of  decedents '  estates,  whether  testate  or 
intestate,  have  been  reduced  to  a  statutory  and  often  to  a 
minutely  codified  form.  The  provisions  of  these  statutes 
are  to  a  large  extent  the  principles  and  doctrines  concern- 
ing the  subject-matter  which  have  been  settled  by  the  Eng- 
lish and  American  courts  of  equity  through  a  long  course 
of  decision.  The  effect  of  this  entire  legislation  upon  the 
equitable  jurisdiction  existing  in  the  same  states  remains  to- 
be  considered. 

§  348.  Class  First.  Ordinary  Equity  Jurisdiction  over  Ad- 
ministrations Abolished. —  The  general  effect  produced  by 
this  legislative  system  may  be  briefly  stated  in  one  proposi- 
tion. In  a  great  majority  of  the  states  the  original  equi- 
table jurisdiction  over  administrations  is  in  all  ordinary 
cases  —  that  is,  in  all  cases  without  any  special  circum- 
stances, such  as  fraud,  or  without  any  other  equitable  fea- 
ture, such  as  a  trust  —  either  expressly  or  practically  abro- 
gated. The  courts  of  equity,  in  the  absence  of  such  special 
circumstances  or  distinctively  equitable  feature,  either  dO' 
not  possess  or  will  not  exercise  the  jurisdiction,  but  leave 
the  whole  matter  of  administrations  to  the  special  probate- 


573  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    318 

tribunals.  To  describe  this  result  more  accurately,  the 
states  must  be  separated  into  two  divisions.  In  the  one 
class,  the  statutes  creating  the  probate  courts  and  defining 
their  powers  are  drawn  in  such  mandatory  terms  that  the 
jurisdiction  conferred  upon  them  is  held  by  the  judicial  in- 
terpretation to  be  exclusive ;  and  no  concurrent  jurisdiction 
over  administration  is  possessed  by  the  courts  of  equity  in 
any  case,  unless  it  involves  some  additional  incident  or  fea- 
ture —  such  as  trust  or  fraud  —  which  of  itself,  and  inde- 
pendently of  the  administration,  would  be  a  sufficient  ground 
for  the  interference  of  an  equity  court.  In  other  words, 
this  most  important  and  extensive  department  has  been 
completely  cut  off  from  the  purely  equitable  jurisdiction, 
and  transferred  to  that  of  the  probate  courts,  although  most 
of  the  doctrines  concerning  administration  in  general, 
hitherto  settled  by  the  courts  of  equity,  and  which  form  an 
integral  part  of  the  equity  jurisprudence,  have  been  pre- 
served and  made  more  compulsory  in  the  statutes  which 
regulate  the  proceedings  and  furnish  rules  for  the  decisions 
of  these  special  probate  tribunals.^ 

1  The  decisions  by  which  the  result  described  in  the  text  has  been  accom- 
plished throughout  the  various  states  composing  this  class  are  collected  and 
compared  in  this  note. 

Mississippi. —  This  view  of  the  equitable  jurisdiction  for  a  long  time  pre- 
vailed in  the  state  of  Mississippi  and  was  regarded  as  settled  in  the  follow- 
ing among  many  other  cases:  Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5 
Am.  Rep.  498;  Blanton  v.  King,  2  How.  856;  Carmichael  v.  Browder,  3 
How.  252;  but  by  an  alteration  in  the  statutes,  and  a  change  in  the  judicial 
interpretation,  and  especially  by  the  latest  constitution  reconstructing  the 
judiciary,  this  theory  has  been  abandoned,  and  the  original  jurisdiction  of 
equity  over  administrations  has  been  fully  re-established,  as  will  appear  in 
the  note  under  the  next  paragraph.  The  line  of  decisions,  of  which  the 
above  are  examples,  have  therefore  been  overruled. 

Pennsylvania. —  The  doctrine  of  the  text  is  firmly  settled  in  this  state  by 
numerous  decisions,  of  which  the  following  are  among  the  most  recent; 
Dundas's  Appeal,  73  Pa.  St.  474,  479;  Linsenbigler  v.  Gourley,  56  Pa.  St. 
166,  172,  94  Am.  Dec.  51;  Whiteside  v.  Whiteside,  20  Pa.  St.  473,  per 
Black,  C.  J.;  Campbell's  Appeal,  80  Pa.  St.  298. 

Massachusetts. —  This  state  may  also  be  included  in  the  class,  although  the 
extent  of  its  equitable  system  has  already  been  described:  Wilson  v.  Leis- 
man,  12  Met.  316.    See  quotations  from  the  opinion  in  note  under  S  320. 


§    349  EQUITY    JURISPRUDENCE.  574 

§  349.  Class  Second.  Such  Jurisdiction  Practically  Obsolete. 
—  In  the  other  and  more  numerous  division,  the  statutes 
creating  the  probate  courts  and  defining  their  powers  are 
not  so  negative  and  mandatory  in  their  terms  that  they  ipso 
facto  render  the  probate  jurisdiction  absolutely  exclusive. 
The  equitable  jurisdiction  is  theoretically  left  existing,  and 
is  sometimes  spoken  of  as  *'  concurrent  with,"  and  some- 
times as  ''  auxiliary  to,"  that  of  the  probate  courts.  Prac- 
tically, however,  it  is  abolished,  or  perhaps  it  would  be  more 
strictly  accurate  to  say  that  its  exercise  is  suspended,  in  all 
ordinary  cases.  The  meaning  of  this  proposition  as  ex- 
plained in  varying  language  by  different  judges  is,  that  un- 
less the  case  involves  some  special  feature  or  exceptional 
circumstances  of  themselves  warranting  the  interference  of 
equity,  such  as  fraud,  waste,  and  the  like,  or  unless  it  is  of 
such  an  essential  nature  that  a  probate  court  is  incompetent 
to  give  adequate  relief,  or  is  one  of  which  the  probate  courts 
having  taken  cognizance,  has  completely  miscarried  and 
failed  to  do  justice  by  its  decree,  the  courts  of  equity  will 
refuse  to  interpose  and  to  exercise  whatever  dormant  pow- 
ers they  may  possess,  but  will  leave  the  subject-matter  and 
the  parties  to  the  jurisdiction  of  the  statutory  forum,  which 
the  legislature  plainly  regarded  as  sufficient  and  intended 
to  be  practically  exclusive.  According  to  this  theory,  the 
courts  of  equity  do  not  deny  the  existence  of  any  jurisdic- 
tion over  administrations ;  but  they  treat  their  own  jurisdic- 
tion as  auxiliary  and  supplementary,  and  not  as  concurrent, 
only  to  be  exercised  in  the  exceptional  cases  where  the  pro- 
bate jurisdiction  is  confessedly  inadequate,  or  has  actually 
shown  itself  insufficient.^ 

1  Tlie  following  states  properly  belong  to  this  division,  although  it  will 
be  seen  i)y  examining  the  decisions  that  a  somewhat  varying  language  haa 
been  employed  by  difTcrent  courts  to  describe  the  condition  of  the  jurisdiction: 

Arkansas. —  In  Haag  v.  Sparks,  27  Ark.  594,  it  was  held  that  generally 
courts  of  equity  will  not  take  jurisdiction  of  an  administration  when  it 
iB  before  the  probate  court;  citing  Moren  v.  McCown,  23  Ark.  93;  Free, 
man  v.  Reagan,  26  Ark.  373.  But  when  the  circumstances  are  special, 
and  the  prol)atc  court  cannot  give  adequate  relief,  equity  will  take  juris- 
diction.     In    Freeman    v.    Reagau,    20    Ark.    373,    378,    the    rule    was    stated 


575  JUDICIAL,    INTEEPRETATION    OF    JURISDICTION.  §    350 

§  350.  Class  Third.  Such  Jurisdiction  Existing  and  Con- 
current.—  There  is,  however,  still  a  third  division,  compris- 
ing a  few  of  the  states,  in  which,  notwithstanding  the  pro- 
bate courts  with  all  the  powers  given  them  by  statute,  the 
original  and  full  equitable  jurisdiction  over  administrations 

that  courts  of  chancery  will  not,  in  general,  take  jurisdiction  of  an  ad- 
ministration going  on  before  the  probate  court;  but  still  there  may  be 
cases  of  fraud,  waste,  etc.,  which  would  enable  courts  of  chancery  to  inter- 
fere, and  exercise  powers  not  held  by  the  probate  court.  In  applying  this 
rule,  it  may  be  remarked  that  whenever  a  probate  court  has,  in  any  case, 
issued  letters  testamentary  or  of  administration,  admitted  a  will  to  probate, 
or  taken  any  other  judicial  step,  the  administration  will  then  be  "pending" 
or  "  going  on  before  "  such  probate  court  within  the  meaning  of  the  language 
above  quoted. 

Connecticut. —  Bailey  v.  Strong,  8  Conn.  278,  280. 

Georgia.—  Harris  v.  Tisereau,  52  Ga.  153,  159-163,  21  Am.  Eep.  242. 
The  probate  court  has,  in  all  ordinary  cases,  an  exclusive  jurisdiction  in  the 
probate  of  wills,  in  the  appointment  of  executors  and  administrators,  and 
in  administrations;  citing  Georgia  Code,  §  331;  Slade  v.  Street,  27  Ga.  17; 
and  Walton  v.  Walton,  21  Ga.  13.  But  equity  has  full  jurisdiction  in  all 
cases  of  fraud;  and  where  fraud  thus  exists,  it  may  draw  after  it  as  an 
incident  a  jurisdiction  over  matters  of  administration.  It  had  been  held 
in  an  early  case,  decided  under  a  former  statute,  that  the  original  juris- 
diction of  equity  in  administrations  still  existed  in  Georgia:  Walker  v. 
Morris,  14  Ga.  323,  325-327;  but  this  decision  is  no  longer  an  authority. 
See  also  Collins  v.  Stephens,  58  Ga.  284. 

/Hmois.— Heustis  v.  Johnson,  84  111.  61;  Freeland  v.  Dazey,  25  111.  294. 
In  Heustis  v.  Johnson,  84  111.  61,  which  was  a  suit  in  equity  against  an 
administrator  for  a  final  accounting  and  settlement,  the  court  stated  the 
rule :  "  Courts  of  equity  will  not  exercise  jurisdiction  over  the  adminis- 
tration of  estates  except  in  extraordinary  cases.  Some  special  reason  must  be 
shown  why  the  administration  should  be  taken  from  the  probate  court;  " 
citing  Freeland  v.  Dazey,  25  111.  294;  and  see  Strubher  v.  Belsey,  79  111. 
307,  308.  And  yet  in  Heward  v.  Slagle,  52  111.  336,  which  was  an  appeal  by 
the  distributees  (or  heirs)  from  a  decree  of  the  probate  court  finally  settling 
the  administrator's  accounts,  the  supreme  court  said :  "  When  the  probate 
court  has  settled  an  administrator's  account,  and  discharged  the  adminis- 
trator, and  the  heirs  are  dissatisfied  and  wish  a  review  and  resettlement,  and 
the  estate  is  complicated,  the  better  mode  is  by  a  bill  in  chancery,  and  not  by 
appeal  from  the  probate  court." 

New  Jersey.— Frey  v.  Demarest,  16  N.  J.  Eq.  236,  239.  For  a  state- 
ment of  this  decision  and  a  more  full  explanation  of  the  rule  which  seems 
to  prevail  in  New  Jersey,  see  the  note  imder  the  next  succeeding  paragraph. 

New  rorfc.— Chipman  v.  Montgomery,  63  N.  Y.  221,  235,  236.  Since 
this  decision  is  quite  recent,  and  since  the  reasoning  and  conclusions  of  the 
court  will  apply  with  equal  force  to  the  legislation  of  many  other  states 
besides    New    York,    and    fully    illustrate    the    propositions    of    the    text,    I 


§    350  EQUITY   JURISPRUDENCE.  576 

is  held  to  remain  unimpaired.  The  authority  of  courts  of 
equity  over  the  general  subject  of  administration,  which 
forms  a  part  of  the  unabridged  system  of  equity  jurispru- 
dence, still  continues  in  those  tribunals  concurrent  with  that 
conferred  upon  the  probate  courts,  and  it  may  be  exercised 
even  though  the  case  does  not  involve  any  special  incidents 
or  features  which  of  themselves  would  constitute  distinctive 

shall  quote  from  the  able  opinion  of  Allen,  J.,  at  some  length.  The  suit 
was  equitable,  brought  by  next  of  kin  against  an  executor,  praying  various 
kinds  of  relief.  In  dismissing  the  suit,  the  court,  by  Allen,  J.,  said  (pp.  2:'"), 
236)  :  "Again,  as  an  action  for  accounting  as  to  the  personalty,  as  in  case 
of  intestacy,  the  action  ought  not  to  be  sustained.  The  laws  give  lull 
powers  to  the  surrogate's  court  to  call  executors  and  administrators  to 
account,  and  to  distribute  the  estate  among  the  next  of  kin,  and  to  pass 
upon  every  question  that  may  arise,  directly  or  indirectly,  in  the  progress 
of  the  accounting  and  final  distribution.  That  is  the  appropriate  tribunal, 
conceding  that,  to  a  limited  extent,  concurrent  jurisdiction  exists  in  a 
court  of  equity.  The  jurisdiction  of  courts  of  equity  in  respect  to  accounts 
in  the  course  of  administration,  and  the  marshaling  of  assets,  grew  out  of 
the  defects  in  the  process  and  powers  of  ecclesiastical  courts,  and  the  early 
courts  of  probate.  The  jurisdiction  over  cases  of  administration  was  made 
to  rest  upon  the  notion  of  a  constructive  trust  in  executors  and  adminis- 
trators, as  well  as  the  necessity  of  taking  accounts  and  compelling  a  dis- 
covery. But  these  considerations  do  not  apply  in  ordinary  cases  to  the 
settlement  of  estates  in  this  state;  and  to  withdraw  a  case  of  mere  settle- 
ment of  an  estate,  disconnected  with  the  enforcement  of  a  special  and  express 
trust,  as  distinguished  from  what  is  called  a  constructive  trust  in  all  ad- 
ministrations, from  the  tribunal  created  for  that  purpose  with  ample 
powers,  special  reasons  should  be  assigned,  and  facts  stated  to  show  that 
full  and  complete  justice  cannot  be  done  in  that  court.  Upon  a  final  account- 
ing,—  and  that  is  what  the  plaintiffs  are  entitled  to  if  they  have  any  rights 
as  next  of  kin, —  creditors,  as  well  as  legatees  and  next  of  kin,  are  entitled 
to  be  heard ;  and  they  may  much  more  easily  be  cited  before  a  surrogate 
than  made  parties  to  a  formal  suit  in  equity.  Chancellor  Kent  recognizes 
the  rule  that  creditors  may  come  into  the  court  of  chancery  for  the  dis- 
covery of  assets;  but  that  draws  the  whole  settlement  of  the  estate  into  chan- 
cery, which  certainly  is  not  to  be  encouraged:  Thompson  v.  Brown,  4  Johns. 
Ch.  G19.  In  Seymour  v.  Seymour,  4  Johns.  Ch.  409,  the  chancellor  refused 
to  take  jurisdiction,  and  interfere  with  the  ordinary  exercise  of  the  powers 
of  the  surrogate  in  the  settlement  of  the  accounts  of  administrators  and 
the  distribution  of  the  estate,  without  some  special  reasons  set  forth  in  the 
bill.  The  province  of  the  court  of  chancery  was  to  aid  by  a  discovery,  and 
when  necessary  by  injunction,  the  courts  of  surrogates  in  the  exercise  of 
their  general  powers,  and  the  jurisdiction  sliould  be  regarded  rather  as  aux- 
•Jiary  than  concurrent.  But  there  is  no  action  now  possible  for  a  discovery, 
and  the  plaintiffs  do  not  make  a  case  for  or  ask  for  an  injunction.  It  is 
not    optional    with    executors    and    administrators    accounting   on    their   own 


577  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    350 

and  independent  grounds  of  equitable  interference.  This 
continued  existence  of  an  active  equitable  jurisdiction  re- 
sults in  some  instances  from  positive  provisions  of  the  legis- 
lation, in  others  from  the  merely  permissive  terms  of  the 
statute  defining  the  powers  of  probate  courts,  or  perhaps 
from  the  absence  of  any  negative  or  sufficiently  mandatory 
language.^ 

motion,  or  creditors,  legatees,  or  next  of  kin  calling  them  to  an  accounting, 
to  pass  by  the  surrogate's  court  having  ample  jurisdiction  in  the  premises, 
and,  without  assigning  any  special  reasons,  proceed  by  formal  action  in 
equity,  making  all  persons  whose  presence  is  necessary  to  a  final  accounting 
parties  to  the  action.  It  would  be  unreasonable  to  subject  the  parties  to  the 
vexation  and  delay,  and  the  estate  to  the  unnecessary  costs,  of  such  a  liti- 
gation:    Adams  v.  Adams,  22  Vt.  50." 

0/uo.— Piatt  V.  Long\vorth's  Ex'rs,  27  Ohio  St.  159,  186:  "Since  the  act 
of  1853,  the  probate  court  has  exclusive  jurisdiction  of  the  settlement  of 
the  accounts  of  executors  and  administrators.  When  that  remedy  proves  in- 
iidequate,  the  aid  of  a  court  of  equity  may  be  invoked." 

Rhode  Island.—  Blake  v.  Butler,  10  R.  I.  133,  137,  138.  An  administrator 
had  filed  his  accounts  in  the  probate  court,  and  a  final  decree  of  settlement 
and  distribution  had  been  made  therein.  The  plaintiffs  —  next  of  kin  —  ap- 
pealed to  the  supreme  court  under  the  statute.  Pending  this  appeal  the  plain- 
tiffs commenced  a  suit  in  equity  in  the  supreme  court  against  the  adminis- 
trator, charging  fraud  in  the  administration  and  in  his  accounts,  and  pray- 
ing for  general  relief,  an  accounting,  and  settlement.  The  supreme  court 
held  that  it  had  no  jurisdiction  of  the  suit  under  such  circumstances;  that 
the  plaintiff  could  obtain  full  relief  in  the  probate  court  or  on  the  appeal; 
that  the  jurisdiction  in  equity  is  only  concurrent  with  that  of  the  probate 
court,  and  the  jurisdiction  of  the  probate  court  having  first  attached  thereby 
became,  under  a  general  principle,  exclusive.  According  to  this  decision, 
the  doctrine  adopted  in  Rhode  Island  is,  perhaps,  not  in  full  harmony  with 
the  proposition  formulated  in  the  text;  it  appears  that  equity  has  an  active 
concurrent  jurisdiction  over  administrations,  and  may  regulate  and  decree 
the  settlement  of  decedents'  estates.  Still,  the  state  can  hardly  be  regarded  as 
fully  belonging  to  the  third  class,  described  in  the  next  succeeding  paragraph. 

1  The  following  states  may  properly  be  placed  in  this  division:  — 

Mississippi. —  Walker  v.  State,  53  Miss.  532,  535 ;  Bank  of  Miss.  v.  Dun- 
can, 52  Miss.  740 ;  Brunini  v.  Pera,  54  Miss.  649 ;  Evans  v.  Robertson,  54  Miss. 
683.  In  Walker  v.  State,  53  Miss.  532,  the  court  held  that  under  the  con- 
stitution of  1832,  the  rule  was  settled  that  chancery  had  no  jurisdiction  of 
admiinistration,  but  that  the  jurisdiction  belonged  exclusively  to  courts  of 
probate.  Under  the  present  constitution,  such  original  jurisdiction  has  been 
restored  to  courts  of  equity,  and  they  may  entertain  suits  for  administration 
proper,  and  also  suits  upon  administration  bonds  against  the  administrator 
or  executor  and  his  sureties.  The  same  ruling  is  repeated  in  the  other  cases 
cited,  and  a  long  line  of  previous  decisions  is  of  course  overruled. 

Vol.  1  —  37 


§    351  EQUITY    JURISPRUDENCE.  578 

§  351.  Special  Subjects  of  Equitable  Cognizance  in  Aid  of 
Administrations. —  While  the  original  jurisdiction  of  equity 
over  the  subject  of  administration  in  general  is  thus  abol- 
ished in  so  many  states,  the  power  to  interfere  for  some 
special  and  partial  pui-pose,  or  to  grant  some  special 
and  partial  relief  in  the  course  of  the  administration  and 
settlement  of  decedents'  estates,  exists  in  all  the  common- 
wealths as  a  part  of  the  general  functions  belonging  to 
equity  courts.  The  jurisdiction  over  estates,  interests,  and 
primary  rights  purely  equitable,  and  to  administer  equi- 
table remedies,  is  nowhere  lost  merely  because  the  interest, 
right,  or  remedy  grows  out  of  or  is  connected  with  the  es- 
tate of  a  deceased  person  which  is  in  the  course  of  admin- 
istration, even  though  tjie  administration  proper,  the  ac- 
counting, and  final  settlement  are  carried  on  under  the  ex- 
clusive supervision  of  another  tribunal.  In  all  such  cases 
the  jurisdiction  must,  of  course,  be  based  upon  some  dis- 
tinctive and  independent  ground  or  matter  of  equitable  cog- 

New  Jersey. —  Frey  v.  Demarest,  16  N.  J.  Eq.  236,  238,  239.  In  this  care- 
fully considered  case,  the  court  expressly  holds  that  the  concurrent  juris- 
diction of  equity  with  the  probate  courts  over  the  administration  of  assets 
has  long  been  well  settled,  and  may  be  exercised  on  behalf  of  legatees,  next 
of  kin,  creditors,  and  executors  or  administrators.  The  suit  by  a  next  of  kin 
for  his  share  was  established  in  the  reign  of  Charles  II.  In  New  Jersey, 
the  equity  jurisdiction  over  the  accounts  of  executors  and  administrators, 
and  to  enforce  the  claims  of  creditors,  legatees,  and  next  of  kin,  has  been 
repeatedly  afhrmed  and  is  constantly  exercised;  it  is  well  settled,  and  also 
its  limitations;  citing  Meeker  v.  j\Iarsh,  1  N.  J.  Eq.  198;  King  v.  Ex'rs  of 
Berry,  3  N.  J,  Eq.  44,  261;  Salter  v.  Williamson,  2  N.  J.  Eq.  480,  489,  35  Am. 
Dec.  513;  Smith  v.  Moore's  Ex'rs,  4  N.  J.  Eq.  485;  Van  Mater  v.  Sickler,  9 
N.  J.  Eq.  483;  Clark  v.  Johnston,  10  N.  J.  Eq.  287.  To  this  explicit  state- 
ment of  the  doctrine,  the  court  adds  a  conclusion  which  may  seem  somewhat 
inconsistent  with  it:  "  But,  unless  for  some  special  cause,  a  court  of  equity 
will  not  interfere  with  the  ordinary  jurisdiction  of  the  probate  court  in  the 
settlement  of  the  accounts  of  administrators  or  executors." 

Rhode  Island.— Blake  v.  Butler,  10  R.  I.  133,  137,  138.  See  the  state- 
ment of  this  case  and  conimonls  upon  it  in  the  note  under  the  preceding 
paragraph.  It  appears  that  in  Kliode  Island  the  equitable  jurisdiction  of 
the  supreme  court  is  concurrent,  and  of  course  may  be  exercised;  but  if  the 
probate  court  has  already  taken  cognizance  of  a  particular  administration, 
equity  will  not  then  interfere,  unless  for  some  special  and  exceptional  reason, 
but  will  leave  the  matter  under  the  exclusive  control  of  the  probate  tribunal. 


579  JUDICIAL   INTERPKETATION    OF    JURISDICTION.  §    351 

nizance,  and  its  exercise  may  then  result  in  a  remedy  which 
is  a  material  aid  to  a  pending  administration,  or  which  re- 
moves an  impediment  from  the  final  settlement  of  an  es- 
tate; as,  for  example,  the  construction  of  a  will  containing 
trust  provisions,  the  enforcement  of  trusts  created  by  a  willy, 
the  establishment  of  a  will  lost  or  fraudulently  destroyed,, 
the  canceling  and  setting  aside  a  fraudulent  transfer  made 
by  an  executor  or  administrator,  and  the  like.  While  these 
and  similar  instances  of  the  reliefs  which  may  always  be 
furnished  by  courts  of  equity  are  not  in  any  sense  parts  of 
or  derived  from  the  original  jurisdiction  over  administra- 
tions, and  have  not  therefore  been  withdrawn  from  the 
courts  by  the  legislation  on  the  subject,"  yet  they  may  prop- 
erly be  regarded  as  incidental  and  auxiliary  to  that  juris-^ 
diction,  even  where  it  has  been  exclusively  intrusted  to  the- 
probate  tribunals.  In  some  of  the  states  belonging  to  the 
second  division  as  described  above,  where  the  general  equity 
jurisdiction  over  administrations  is  not  absolutely  abol- 
ished, but  is  rather  suspended  or  dormant,  when  such  a  suit 
is  properly  brought  to  obtain  a  particular  relief  which 
necessarily  operates  to  aid  some  pending  administration,. 
or  to  remove  some  obstacle  from  its  completion,  the  rule  is- 
settled,  in  accordance  with  a  familiar  principle,^  that  the 
court,  having  thus  acquired  a  partial  jurisdiction  over  the 
subject-matter,  or  for  a  partial  purpose,  will  go  on  and 
decree  full  and  final  relief.  The  court  will  therefore,  in 
addition  to  the  particular  remedy  demanded,  take  control 
of  the  entire  administration;  will  even  withdraw  it  from  the 
probate  court  if  already  begun  therein,  and  to  that  end  will 
enjoin  all  further  proceedings  before  such  tribunal,  and  will 
order  a  final  accounting  and  decree  a  final  settlement  and 
distribution,  whether  the  deceased  died  testate  or  intestate." 

iSee  ante,  cheap.  II.,  sec.  iii.,  §§  231-243. 

2  Alabama. —  Pearson  v.  Darrington,  21  Ala.  169,  176,  holds  that  equity 
has  jurisdiction  of  a  suit  brought  to  settle  the  accounts  of  complicated  trans- 
actions entered  into  by  an  administrator,  and  to  enforce  the  due  execution 

(a)  See,  by  way  of  illustration,  Howell  v.  Moores,  127  111.  67,  19  N.  E.  863, 
citing  the  text;  ante,  §  280. 


§    352  EQUITY    JUKISPEUDENCE.  580 

§  352.  Any  discussion  at  present  of  the  cases  in  wliicli 
a  court  of  equity  may  thus  interfere  and  grant  particular 
reliefs  connected  with  a  pending  administration,  which  will 
operate  in  aid  of  its  complete  settlement,  would  necessarily 
require  me  to  anticipate  many  subjects  properly  belonging 
to  subsequent  portions  of  this  work;  I  have,  therefore,  for 
the  purpose  of  more  clearly  explaining  the  statements  of 
the  preceding  paragraph,  merely  placed  in  the  foot-note  a 
few  examples  which  will  sufficiently  illustrate  the  meaning 
■of  the  text.^    There  are  a  few  states  in  which,  by  the  opera- 

■of  trusts  created  by  a  will;  and  when  it  takes  jurisdiction  in  such  a  case 
by  the  commencement  of  a  suit,  the  whole  administration  is  thereby  withdrawn 
from  the  probate  court:  Cowles  v.  Pollard,  51  Ala.  445,  447.  When  the 
trusts  of  a  will  are  doubtful,  equity  has  jurisdiction  to  construe  the  will 
and  to  direct  the  executor  in  the  execution  of  its  provisions:  Sellers  v. 
Sellers,  35  Ala.  235;  Trotter  v.  Blocker,  6  Port.  269.  And  when  chancery 
takes  jurisdiction  upon  any  such  independent  ground  of  equitable  cognizance, 
it  will  retain  the  entire  administration  and  decree  a  final  settlement  of  the 
estate.  In  such  a  case  the  court  of  equity  will  apply  the  same  rules  of  law 
•concerning  the  settlement  of  estates  which  would  govern  the  probate  court,  but 
in  its  procedure  will  follow  the  methods  and  rules  of  chancery  practice: 
Stewart  v.  Stewart,  31  Ala.  207;  Wilson  v.  Crook,  17  Ala.  59;  Hunley  v. 
Hunley,  15  Ala.  91;  Hall  v.  Wilson,  14  Ala.  295;  Taliaferro  v.  Brown,  11 
Ala.  702. 

'Sew  Jersey. —  Youmans  v.  Youmans,  26  N.  J.  Eq.  149;  and  Mallory  v. 
Craige,  15  N.  J.  Eq.  73.  In  a  suit  properly  brought  for  the  construction 
of  a  will,  all  parties  being  before  the  court,  a  final  accounting  by  the  exec- 
utor and  settlement  of  the  estate  will  be  decreed. 

1  This  jurisdiction,  based  upon  distinct  and  independent  grounds  of  equi- 
table cognizance,  to  grant  remedies  which  will  more  or  less  directly  aid,  or 
remove  obstacles  from,  a  pending  administration  is  well  settled,  and  con- 
stantly exercised  for  the  following  purposes,  among  others:  To  construe 
doubtful  provisions  of  a  will,  and  to  direct  the  executors  with  respect  to 
their  duties  when  a  trust  is  created  by  it;  but  there  is  no  such  equitable  juris- 
diction to  interpret  a  will  —  or  a  deed  —  which  only  deals  with  and  disposes 
of  purely  legal  estates  or  interests,  and  which  makes  no  attempt  to  create 
any  trust  relations  with  respect  to  the  property  donated.  This  special  juris- 
diction to  interpret  a  will  is  wholly  an  outgrowth  and  application  of  the 
general  power  over  trusts:  Chipman  v.  Montgomery,  63  N.  Y.  221,  230; 
Bailey  v.  Briggs,  50  N.  Y.  407;  Post  v.  Ilovor,  33  N.  Y.  593,  602,  30  Barb. 
312,  324;  Bowers  v.  Sriiith,  10  Paige,  194;  WoodrufT  v.  Cook,  47  Barb.  304; 
•Onderdonk  v.  Mott,  34  Bail).  100;  Walrath  v.  Handy,  24  How.  Pr.  353;  Cowles 
V.  Pollard,  51  Ala.  445,  447;  Youmans  v.  Youmans,  20  N.  J.  Eq.  149;  Strubher 
V.  Belsey,  79  111.  307,  308;  Whitman  v.  Fisher,  74  111.  147;  Simmons  v. 
Hendricks,  8  Ired.  Eq.  84,  85,  80,  55  Am.  Dec.  439. 


581  JUDICIAL.   INTERPRETATION    OF   JURISDICTION.  §    352 

tion  of  peculiar  and  mandatory  language  of  the  statutes, 
certain  other  subjects  which  belong  to  the  equrtable  juris- 
diction in  its  original  form  have  been  withdrawn  from  the 
cognizance  of  equity  courts,  and  given  into  the  exclusive 
control  of  special  tribunals,  ordinarily  to  those  leaving  pro- 
bate powers ;  as,  for  example,  the  assignment  of  dower,  and 
the  partition  of  real  estate.  These  instances,  however,  are 
so  few  and  comparatively  unimportant  that  they  do  not  sub- 
stantially affect  the  general  system  of  equitable  jurisdiction 
existing  throughout  the  country,  and  their  consideration 

The  doctrine  is  clearly  and  concisely  stated  by  Allen,  J.,  in  the  recent  case 
of  Chipman  v.  Montgomery,  63  N.  Y.  221,  and  I  quote  a  short  passage  from 
his  opinion  at  page  230:  "  Tlie  rule  is,  that,  to  put  a  court  of  equity  in  mo- 
tion, there  must  be  an  actual  litigation  in  respect  to  matters  which  are  the 
proper  subjects  of  the  jurisdiction  of  that  court  as  distinguished  from  a  court 
of  law.  .  .  .  It  is  by  reason  of  the  jurisdiction  of  courts  of  chancery 
over  trusts  that  courts  having  equitable  powers  as  an  incident  of  that  juris- 
diction take  cognizance  of  and  pass  upon  the  interpretation  of  wills.  They 
do  not  take  jurisdiction  of  actions  brought  solely  for  the  construction  of  in- 
struments of  that  character,  or  when  only  legal  rights  are  in  controversy. 
Judge  Folger,  in  Bailey  v.  Briggs,  56  N.  Y.  407,  well  expresses  the  rule  in 
these  words :  *  It  is  when  the  court  is  moved  on  behalf  of  an  executor, 
trustee,  or  cestui  que  trust,  and  to  insure  a  correct  administration  of  the 
power  conferred  by  a  will,  that  jurisdiction  is  had  to  give  a  construction  to 
a  doubtful  or  disputed  clause  in  a  will.  The  jurisdiction  is  incidental  to 
that  over  trusts.'  This  is  in  accord  with  all  the  cases  in  which  the  question 
has  been  considered  by  the  courts  in  this  state."  Suits  based  upon  the  actual 
fraud,  misconduct,  waste,  or  misappropriation  of  funds  by  the  administrator 
or  executor  in  the  performance  of  his  fiduciary  duties,  either  to  set  aside 
transfers  fraudulently  made  by  him,  or  decrees  of  the  probate  court  fraudu- 
lently obtained,  or  to  reach  property  under  his  control  belonging  to  the  es- 
tate: Clark  V.  Henry's  Adm'rs,  9  Mo.  336;  Freeman  v.  Reagan,  26  Ark.  373, 
378;  Haag  v.  Sparks,  27  Ark.  594. 

Suits  to  establish  a  will  which  had  been  fraudulently  destroyed:  Harris 
V.  Tisereau,  52  Ga.  153,  159-163,  21  Am.  Rep.  242,  holds  that  equity  has  full 
jurisdiction  in  all  cases  of  fraud,  except  fraud  in  the  execution  of  a  will,  and 
this  includes  fraud  in  the  destruction  of  a  will,  notwithstanding  the  juris- 
diction over  administrations  given  to  the  probate  court.  Suits  to  aid  or  re- 
move an  obstacle  from  the  due  course  of  administration,  either  by  establishing' 
or  setting  aside  a  settlement  made  by  the  decedent  upon  his  wife,  and  by 
determining  her  rights  under  it,  and  to  the  estate:  Campbell's  Appeal,  30 
Pa.  St.  298.  A  husband  had  executed  a  post-nuptial  settlement  upon  his  wife, 
and  afterwards  died,  leaving  a  will.  The  widow  elected  not  to  take  under 
the  will,  claiming  her  dower  and  share  of  the  personal  property  as  though 
her  husband  had  died  intestate.     She  also  brought  suit  in  equity  to  set  aside 


%    353  EQUITY   JURISPRUDENCE.  582 

^will  be  postponed  to  a  subsequent  chapter.  The  radical 
•changes  in  the  doctrines  concerning  trusts  made  by  the  leg- 
islation of  several  states  belong  rather  to  the  equity  juris- 
prudence than  to  the  jurisdiction,  and  they  will  be  fully 
"described  in  the  division  of  this  work  which  treats  of  equi- 
table estates. 

§  353.  States  Which  have  Adopted  the  Reformed  System  of 
Procedure. —  In  dealing  finally  with  the  states  composing 
this  fourth  class,  I  shall  no  longer  inquire  into  the  extent 
of  the  equitable  jurisdiction  as  compared  with  that  of  the 
English  court  of  chancery.  The  only  question  which  now 
.remains  for  consideration  is, —  assuming  that  either  a  full 
or  a  limited  equitable  jurisdiction  had  been  conferred  by 
the  constitution  or  the  statutes  upon  the  courts  of  any  state 
belonging  to  this  class, —  what  is  the  effect  produced  upon 
the  nature,  extent,  and  exercise  of  such  jurisdiction  by  the 
reformed  procedure,  which  has  abolished  all  distinctions 
•between  actions  at  law  and  suits  in  equity,  and  which  pro- 
vides that  all  rights,  legal  and  equitable,  shall  be  main- 
tained, and  all  remedies,  legal  and  equitable,  shall  be  ob- 
•tained,  by  means  of  the  one  civil  action  ?  It  would  be  impos- 
sible, and  indeed  wholly  unnecessary,  for  me  to  follow  the 
■course  of  judicial  discussion  and  decision  upon  this  ques- 

"the  post-nuptial  settlement  on  account  of  fraud.  The  equitable  jurisdiction 
was  sustained ;  the  decree  would  remove  an  obstacle  to  the  settlement  and 
distribution  of  the  estate  by  the  probate  court,  and  it  was  not  an  invasion 
of  the  jurisdiction  given  to  that  tribunal  over  administration.  And  in  Car- 
•michael  v.  Browder,  3  How.  (Miss.)  252,  a  portion  had  been  given  to  a 
wife  by  a  marriage  contract,  and  afterwards  a  legacy  by  lier  husband's  will, 
which  the  executor  claimed  was  intended  to  be  in  satisfaction  of  the  portion, 
but  the  widow  to  be  in  addition  thereto.  A  suit  in  equity  to  determine  the 
rights  of  the  widow  under  the  nuptial  contract  and  the  will,  and  in  the  mean- 
time to  restrain  her  from  suing  in  tiie  probate  court  to  recover  her  legacy, 
was  sustained.  Suits  to  recover  distributive  shares;  In  New  Jersey,  and 
perhaps  in  some  other  states,  the  rule  still  prevails  that  a  next  of  kin  may 
bue  the  administrator  in  ctjuity  to  recover  his  distributive  share  of  the  estate, 
although  the  courts  of  law  and  the  orj)lians'  court  also  have  jurisdiction  if 
there  has  been  a  decree  for  a  distribution  made  in  the  administration;   when 

•  no  decree  of  distribution  has  yet  been  made,  the  only  remedy  of  the  ne.xt  of 

*  jcin  is  by  such  suit  in  equity:     Dorshcimer  v.  Rorback,  23  N.  J.  Eq.  46;  Frey 
*v..Demarc8t,  10  N.  J.  Kq.  236,  238. 


583  JUDICIAL    INTERPRETATION    OF    JURISDICTION,         §    354 

tion  in  each  individual  state ;  all  that  I  can  do  is  to  formu- 
late, in  as  brief  and  comprehensive  terms  as  possible,  the 
conclusions  which  have  been  reached  by  the  courts  in  all 
the  states  of  this  class. 

§  354.  Its  General  Effect  on  the  Jurisdiction. —  Whenever 
the  judges  of  any  state  have  dealt  with  this  subject  gener- 
ally, whenever  they  have  in  general  terms  described  the 
total  effect  of  the  reformed  procedure  upon  the  equity  juris- 
prudence and  jurisdiction,  they  have  all  used  language  of 
the  same  import  and  leading  to  the  same  result.  From  this 
entire  course  of  judicial  decision  and  dicta  in  all  the  states, 
the  following  proposition  may  be  formulated  as  expressing 
the  unanimous  conclusion  of  the  courts  with  respect  to  the 
general  effect  of  the  reformed  procedure.  The  reformed 
procedure,  in  its  abolition  of  all  distinction  between  actions 
at  law  and  suits  in  equity;  in  its  abrogation  of  the  common- 
law  forms  of  action,  and  its  institution  of  one  "  civil  ac- 
tion "  for  all  remedial  purposes;  in  its  allowing  both  legal 
and  equitable  rights  to  be  maintained,  and  legal  and  equi- 
table remedies  to  be  conferred  in  combination  by  the  single 
**  civil  action;  "  and  in  the  uniform  rules  which  it  has  es- 
tablished for  the  regulation  of  this  civil  action  whenever 
and  for  whatever  purposes  it  may  be  used, —  purports  to 
deal  with,  and  does  in  fact  deal  with,  the  procedure  alone, 
with  the  mere  instrumentalities,  modes,  and  external  forms 
by  which  justice  is  administered,  rights  are  protected,  and 
remedies  are  conferred.  The  new  system  was  not  intended 
to  affect,  and  does  not  affect,  the  differences  which  have 
heretofore  existed,  and  still  exist,  between  the  separate  de- 
partments of  ''  law  "  and  "  equity;  "  it  was  not  intended 
to  affect,  and  does  not  affect,  the  settled  principles,  doc- 
trines, and  rules  of  equity  jurisprudence  and  equity  juris- 
diction. To  sum  up  this  result  in  one  brief  statement,  all 
equitable  estates,  interests,  and  primary  rights,  and  all  the 
principles,  doctrines,  and  rules  of  the  equity  jurisprudence 
by  which  they  are  defined,  determined,  and  regulated,  re- 
main absolutely  untouched,  in  their  full  force  and  extent, 


§    354  EQUITY    JURISPRUDENCE.  584 

as  much  as  though  a  separate  court  of  chancery  were  still 
preserved.  In  like  manner  all  equitable  remedies  and  reme- 
dial rights, —  that  is,  the  equitable  causes  of  action,  and  the 
rights  to  obtain  the  reliefs  appropriate  therefor, —  and  the 
doctrines  and  rules  of  equity  jurisprudence  which  define 
and  determine  these  remedies  and  remedial  rights,  and  the 
doctrines  and  rules  of  equity  jurisdiction  which  govern  and 
regulate,  not  the  mere  mode  of  obtaining  them,  but  the  fact 
of  obtaining  such  remedies,  also  remain  wholly  unchanged^ 
and  still  control  the  action  of  courts  in  the  administration 
of  justice.  While  the  external  distinctions  of  form  between 
suits  in  equity  and  actions  at  law  have  been  abrogated,  the 
essential  distinctions  which  inhere  in  the  very  nature  of 
equitable  and  legal  primary  or  remedial  rights  still  exist  as 
clearly  defined  as  before  the  system  was  adopted,  and  must 
continue  to  exist  until  the  peculiar  features  of  the  common 
law  are  destro^^ed,  and  the  entire  municipal  jurisprudence 
of  the  state  is  transformed  into  equity.  If,  therefore,  the 
facts  stated  in  the  pleadings  show  that  the  primary  rights^ 
the  cause  of  action,  and  the  remedy  to  be  obtained  are  legale 
then  the  action  is  one  at  law,  and  falls  within  the  jurisdic- 
tion at  law.*  If,  on  the  other  hand,  the  facts  stated  show 
that  the  primary  rights,  or  the  cause  of  action,  or  the 
remedy  to  be  obtained  are  equitable,  then  the  action  itself 
is  equitable,  governed  by  doctrines  of  the  equity  jurispru- 
dence, and  falling  within  the  equitable  jurisdiction  of  the 
court.  It  should  be  carefully  observed,  however,  that, 
under  the  reformed  system  of  procedure,  the  same  action 
may  be  both  legal  and  equitable  in  its  nature,  since  it  may 
combine  both  legal  and  equitable  primary  rights,  causes  of 
action,  defenses,  and  remedies.  It  is  this  fact  which,  more 
than  any  other,  has  tended  to  produce  whatever  confusion 
may  have  arisen  in  the  actual  workings  of  the  new  system. 
I  have  collected  and  arranged  in  the  foot-note  cases  selected 

(a)  Tlie  text  is  quoted  in  Myers  v.  an  action  to  enforce  the  statutory 
Sierra  Val.  Stock  &  Agric.  Assn.,  122  right  of  contribution  among  stock* 
Cal.    OG'J,   55    I'ac.    G8U,    holding   that        holders  is  at  law. 


585  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  355 

from  the  decisions  of  various  states,  by  which  the  foregoing 
general  conclusions  are  fully  sustained.^ 

§  355.  Its  Particular  Effects. —  While  this  unanimous  con- 
clusion of  the  courts  is,  in  general,  correct ;  while,  when  we 

1  My  limits  of  space  will  not  permit  of  much  extended  citation  from  ju- 
dicial opinions,  and  I  shall  only  quote  a  few  passages  which  state  the  doctrines 
upon  which  the  conclusions  of  the  text  are  founded  in  a  peculiarly  clear  and 
forcible  manner.  I  have  collected  these  cases  according  to  the  states,  ar- 
ranged in  alphabetical  order. 

Arkansas.— Talbot  v.  Wilkins,  31  Ark.  411,  422;  Gantt'a  Dig.,  §§  4461, 
4463,  4464. 

California.— Be  Witt  v.  Hays,  2  Cal.  463,  468,  56  Am.  Dec,  352,  per 
Murray,  C.  J.;  Smith  v.  Rowe,  4  Cal.  6;  Grain  v.  Aldrich,  38  Cal.  514,  99 
Am.  Dec.  423;  Wiggins  v.  McDonald,  18  Cal.  126;  Bowen  v.  Aubrey,  22 
Cal.  566,  569;  White  v.  Lyons,  42  Cal.  279,  282.  In  two  of  these  cases  the 
whole  theory,  both  in  its  positive  and  its  negative  aspects,  was  stated  in  so 
clear  a  manner  that  I  may  be  permitted  to  make  short  extracts  from  the 
opinions,  especially  as  other  cases  have,  from  necessity,  only  repeated  the 
same  conclusions.  In  De  Witt  v.  Hays,  2  Cal.  463,  468,  56  Am.  Dec.  352, 
Mr.  C.  J.  Murray  said :  "  The  legislature,  in  providing  that  '  there  shall  be 
but  one  form  of  civil  action,'  cannot  be  supposed  to  have  intended  at  one 
fell  stroke  to  abolish  all  distinction  between  law  and  equity  as  to  actions. 
Such  a  construction  would  lead  to  infinite  perplexities  and  endless  diffi- 
culties. ...  So  cases  legal  and  equitable  have  not  been  consolidated; 
and  though-  there  is  no  difference  between  the  form  of  a  bill  in  chancery  and  a 
common-law  declaration  under  our  system,  where  all  relief  is  sought  in  the 
same  way  from  the  said  tribunal,  the  distinction  between  law  and  equity  is 
as  naked  and  broad  as  ever.  To  entitle  the  plaintiff  to  the  equitable  inter- 
position of  the  court,  he  must  show  a  proper  case  for  the  interference  of  a 
court  of  chancery,  and  one  in  which  he  has  no  adequate  or  complete  relief  at 
law."  In  White  v.  Lyons,  42  Cal.  279,  282,  Mr.  Justice  Crockett  said: 
"  Under  the  code  there  is  but  one  form  of  action  in  this  state.  ...  If 
the  facts  stated  are  such  as  address  themselves  to  the  equity  side  of  the  court, 
the  appropriate  relief  will  be  granted  by  the  court  sitting  as  a  court  of  equity. 
On  the  other  hand,  if  the  facts  alleged  are  purely  cognizable  in  a  court  of 
law,  the  proper  relief  will  be  administered  in  that  form  of  proceeding." 

/ndiana.— Matlock  v.  Todd,  25  Ind.  128,  130,  per  Elliott,  J.;  Woodford  v. 
Leavenworth,  14  Ind.  311,  314,  per  Worden,  J.;  Emmons  v.  Kiger,  23  Ind. 
483,  487;  Troost  v.  Davis,  31  Ind.  34,  39;  Scott  v.  Crawford,  12  Ind.  411. 

loioa. —  Claussen  v.  Lafrenz,  4  G.  Greene,  224,  225-227;  Kramer  v.  Reb- 
man,  9  Iowa,  114;  Laird  v.  Dickerson,  40  Iowa,  665,  669;  Sherwood  v.  Sher- 
wood, 44  Iowa,  192. 

Kansas. —  Shoemaker  v.  Brovm,  10  Kan.  383,  390;  Sattig  v.  Small,  1  Kan. 
170,  175. 

Kentucky. —  Garret  v.  Gault,  13  B.  Mon.  378,  380;  Martin  v.  Mobile  &  O. 
R.  R.,  7  Bush,  116,  124;  Richmond,  etc.,  T.  Co.  v.  Rogers,  7  Bush,  532,  535; 
Hord  V.  Chandler,  13  B.  Mon.  403;  Hill  v.  Barrett,  14  B.  Mon.  67. 


§    355  EQUITY    JURISPRUDENCE.  586 

look  at  the  effects  of  tlie  reformed  procedure  as  a  whole, — 
en  masse, —  it  is  true  that  equity  and  the  law  remain  un- 
changed,—  still,  this  proposition  is  not  true  in  every  particu- 
lar; there  are  some  important  and  necessary  limitations. 

Minnesota. —  Gates  v.  Smith,  2  Minn.  30,  32;  Guernsey  v.  Am.  Ins.  Co.,  17 
Minn.  104,  108;  Montgomery  v.  McEwen,  7  Minn.  351. 

Missouri. —  Henderson  v.  Dickey,  50  Mo.  161,  165 ;  Lackland  v.  Garesche, 
56  Mo.  267,  270;  Magwire  v.  Tyler,  47  Mo.  115,  128;  Meyers  v.  Field,  37  Mo. 
434,  441;  Richardson  v.  Means,  22  Mo.  495,  498;  Maguire  v.  Vice,  20  Mo.  429; 
Rogers  v.  Penniston,  16  Mo.  432;  and  see  also  Curd  v.  Lackland,  43  Mo.  139; 
Wynn  v.  Cory,  43  Mo.  301;  Gray  v.  Payne,  43  Mo.  203;  Bobb  v.  Woodward, 
42  Mo.  482,  487;  Peyton  v.  Rose,  41  Mo.  257,  262;  Gott  v.  Powell,  41  Mo. 
416;  Reed  v.  Robertson,  45  Mo.  580;  Rutherford  v.  Williams,  42  Mo.  18,  23; 
Fithian  v.  Monks,  43  Mo.  502,  517. 

Nebraska. —  Wilcox  v.  Saunders,  4  Nebr.  569^  587. 

Nevada. —  Crosier  v.  McLaughlin,  1  Nev.  348 ;  Champion  v.  Sessions,  1 
Nev.  478;  Sherman  v.  Clark,  4  Nev.  138,  97  Am.  Dec.  516;  Conley  v.  Chedie, 
6  Nev.  222. 

New  Yorfc.— Reubens  v.  Joel,  13  N.  Y.  488,  493,  per  S.  L.  Selden,  J.; 
Voorhis  v.  Child's  Ex'rs,  17  N.  Y.  354,  357-362,  per  S.  L.  Selden,  J.;  Peck  v. 
Newton,  46  Barb.  173,  174;  Cole  v.  Reynolds,  18  N.  Y.  74,  76;  Lattin  v. 
McCarty,  41  N.  Y.  107,  110,  per  Hunt,  C.  J.;  Cropsey  v,  Sweeney,  27  Barb. 
310;  Dobson  v.  Pearce,  12  N.  Y.  156,  165,  62  Am.  Dec.  152;  Crary  v.  Good- 
man, 12  N.  Y.  266,  268,  04  Am.  Dec.  506;  N.  Y.  Cent.  Ins.  Co.  v.  Nat.  Protect. 
Ins.  Co.,  14  N.  Y.  85,  90;  Bidwell  v.  Astor  Ins.  Co.,  10  N.  Y.  263,  267; 
Phillips  V.  Gorham,  17  N.  Y.  270,  273,  275;  Laub  v.  Buckmiller,  17  N.  Y.  620, 
«26;  N.  Y.  Ice  Co.  v.  Northwest  Ins.  Co.,  23  N.  Y.  357,  359,  300;  Brown  v. 
Brown,  4  Rob.  (N.  Y.)  088,  701;  Grinnell  v.  Buchanan,  1  Daly,  538;  Ireland 
V.  Nichols,  1  Sweeny,  208;  Wright  v.  Wright,  54  N.  Y.  437,  442;  Giles  v. 
Lyon,  4  N.  Y.  000;  Anderson  v.  Hunn,  5  Hun,  79;  Barlow  v.  Scott,  24  N.  Y. 
40,  45;  De  Hart  v.  Hatch,  3  Hun,  375,  380;  Wilcox  v.  Wilcox,  14  N.  Y.  575, 
579,  581.  In  the  first  two  cases  above  cited  (Reubens  v.  Joel,  13  N.  Y 
488;  Voorhis  v.  Child's  Ex'rs,  17  N.  Y.  354),  Mr.  Justice  S.  L.  SeldeM 
undoubtedly  carried  this  principle  of  interpreting  the  codes  of  procedure 
altogether  too  far.  By  his  theory  not  only  the  inherent  distinctioas 
between  law  and  equity  are  retained,  but  all  the  differences  of  external 
form  between  suits  in  equity  and  actions  at  law,  and  even  among  the 
various  kinds  of  legal  actions,  are  substantially  preserved.  While  his 
views  on  this  point  have  been  rejected  by  all  the  authoritative  decisions, 
his  statement  of  the  efTect  of  the  new  system  upon  what  is  essential  and 
inherent  in  the  equity  jurisprudence  and  jurisdiction  is  both  accurate  and 
adniiiiible.  From  this  long  list  of  New  York  decisions  I  will  make  one  or 
two  short  quotations.  Lattin  v.  McCarty,  41  N.  Y.  107,  is  a  very  leading 
and  autlioritativo  case,  because  its  facts  presented  the  question  in  the  most 
-direct  manner.  Mr.  C.  J.  Hunt  said  (p.  109)  :  "Assuming  tliat  the  complaint 
does  contiiin  two  causes  of  action,  as  is  insisted,  the  judgment  was  still  er- 
roneous.    Tlie  urguinent   principally   relied    upon   to  sustain   the  demurrer  it 


587  JUDICIAL   INTERPRETATIOISr    OF    JURISDICTION.         §    355 

When  wo  descend  from  such  a  general  survey  of  the  entire 
domain,  and  make  a  close  inspection  of  each  portion  in 
detail,  we  shall  find  that  some  modifications  have  been  made 
in  the  body  of  equity  jurisprudence.    This  result  was  in  fact 

this,  that  the  two  causes  of  action  are  of  different  characters,  or.e  an  action 
of  ejectment,  being  an  action  at  law,  the  other  an  action  to  set  aside  a  deed 
as  fraudulent,  and  of  an  equitable  nature;  that  the  latter  may  be  tried  by 
the  court,  while  in  the  former  the  party  is  entitled  to  have  his  case  passed 
upon  by  a  jury.  The  codifiers  labored  assiduously  to  anticipate  and  to  over- 
rule this  objection."  He  cites  certain  sections  of  the  code,  and  proceeds: 
*'  In  these  provisions  and  in  others,  the  distinction  between  legal  and  equi- 
table causes  of  action  is  recognized.  Tliere  is  no  attempt  to  abolish  this 
distinction,  which  would  be  quite  unavailing.  The  attempt  is  to  abolish 
the  distinction  between  the  forms  of  action  and  the  modes  of  proceeding  in 
the  several  cases.  The  difficulty  under  consideration  has  been  expressly  over- 
ruled by  this  court  in  the  cases  that  I  shall  presently  cite."  He  cites  several 
cases,  all  of  which  are  placed  in  the  above  list.  The  case  of  Wright  v. 
Wright,  54  N.  Y.  437,  is  also  a  very  instructive  one.  The  action  was  by  a 
wife  against  her  husband  upon  a  promissory  note  given  by  him  to  her  before 
the  marriage,  and  in  contemplation  thereof.  The  complaint  was  in  the  usual 
form  of  an  action  on  a  note,  but  stating  the  relation  between  the  parties, 
and  how  the  note  was  given.  Reynolds,  J.,  said  (p.  442)  :  "While  it  is  ad- 
mitted that  the  rights  of  the  plaintiff  could  be  enforced  by  a  suit  in  equity, 
yet  it  is  insisted  that  this,  being  an  action  at  law,  cannot  be  maintained  by 
a  married  woman  against  her  husband.  It  might  be  asked  hy  what  authority 
the  defendant  names  this  an  action  at  law.  What  additional  allegation  in 
the  complaint  would  have  enabled  the  defendant  to  designate  it  as  a  suit  in 
equity?  While  regard  is  still  to  be  had  in  the  application  of  legal  and  equi- 
table principles,  there  is  not  of  necessity  any  difference  in  the  mere  form 
of  procedure  so  far  as  the  case  to  be  stated  in  the  complaint  is  concerned. 
All  that  is  needful  is  to  state  the  facts  sufficient  to  show  that  the  plaintiff  is 
entitled  to  the  relief  demanded;  and  it  is  the  duty  of  the  court  to  afford  the 
relief  without  stopping  to  speculate  upon  the  name  to  be  given  to  the  ac- 
tion. These  principles  have  been  frequently  acted  upon  by  the  court.  .  .  . 
When,  as  in  our  sj'stem,  a  single  court  has  jurisdiction  both  in  law  and  in 
€quity,  and  administers  justice  in  a  common  form  of  procedure,  the  two 
jurisdictions  of  necessity  became  to  some  extent  blended.  Tliis  must  be 
especially  the  result  when  the  forms  of  pleading  and  proceeding  are  alike." 
I  know  of  no  opinion  which  more  accurately  and  completely  expresses  the 
true  intent  and  effects  of  the  reformed  procedure  than  this.  In  Wilcox  v. 
Wilcox,  14  N.  Y.  575,  579,  581,  it  was  decided  that  individual  judges  acting 
in  chambers  have  all  the  powers  and  functions  which  were  possessed  and 
exercised  by  the  chancellor  in  chambers. 

Ohio. —  Klonne  v.  Bradstreet,  7  Ohio  St.  322,  325;  Lamson  v.  Pfaff,  1 
Handy,  449,  452;  McCrory  v.  Parks,  18  Ohio  St.  1;  Ellithorpe  v.  Bucks,  17 
Ohio  St.  72;  Clayton  v.  Freet,  10  Ohio  St.  544,  54G;  Coble  v.  Howard,  12  Ohio 
St.   165,   168;   Hager  v.  Reed,   11   Ohio  St.  626,   635;   Dixon  v.  Caldwell,   15 


§    355  EQUITY   JURISPRUDENCE.  588 

inevitable.  Certain  equitable  interests  and  primary  rights, 
and  certain  equitable  remedies  and  remedial  rights,  were- 
so  essentially  bound  up  with  and  dependent  upon  the  forms 
peculiar  to  the  suit  in  equity,  and  to  the  administration  of 
justice  by  the  methods  of  chancery,  that  any  abolition  of  the 
peculiar  forms  must  of  necessity  work  some  change  in  thi& 
class  of  interests,  rights,  and  remedies.  It  is  easy  to  say 
that  the  distinctive  modes  of  equity  procedure  are  alone 
abrogated  by  the  legislature,  while  the  principles,  doctrines, 
and  rules  of  the  equity  jurisprudence  and  jurisdiction  are 
wholly  unaffected ;  but  in  the  very  nature  of  things  this  is 
simply  impossible  with  respect  to  all  the  details  of  the 
system.    Some  particular  changes  in  equity  jurisprudence 

Ohio  St.  412,  415,  86  Am.  Dec.  487.  In  the  last-named  case,  the  court  held 
that  the  code  had  abolished  the  distinction  between  actions  at  law  ami 
suits  in  equity,  and  had  substituted  in  their  place  one  form  of  "  civil  action;" 
but  the  rights  and  liabilities  of  parties,  both  legal  and  equitable,  as  distin- 
guished from  the  mode  of  procedure,  remain  the  same  since  as  before  the 
adoption  of  the  code. 

Oregon. —  Hatcher  v.  Briggs,  6  Oreg.  31,  41. 

Wisconsin. —  Bonesteel  v.  Bonesteel,  28  Wis.  245,  250;  Dickson  v.  Cole,  34 
Wis.  G21,  625;  Mowry  v.  Hill,  11  Wis.  146,  149;  Leonard  v.  Rogan,  20  Wis. 
568;  Supervisors  v.  Decker,  30  Wis.  624,  626-030;  Turner  v.  Pierce,  31- 
Wis.  658,  665;  Lawe  v.  Hyde,  39  Wis.  345;  Noonan  v.  Orton,  21  Wis.  283; 
Horn  V.  Ludington,  32  Wis.  TS.  From  these  and  other  cases  which  might  be 
cited,  it  is  plain  that  the  supreme  court  of  Wisconsin,  while  maintaining 
the  doctrine  that  law  and  equity  are  unaffected  by  the  reformed  procedure, 
has  also  preserved  in  actual  practice  more  of  the  external  distinctions  of 
form  between  equitable  suits  and  legal  actions  than  has  been  done  by  the 
courts  of  any  other  state  where  the  new  system  of  procedure  is  adopted. 

There  are  two  other  states  in  which  law  and  equity  are  blended,  and  are 
administered  by  means  of  the  same  kind  of  action,  with  the  same  forms  of 
pleading  and  rules  of  practice,  although  the  peculiar  system  known  as  the 
"  reformed  procedure  "  does  not  prevail  therein.  These  states  are  Louisiana 
and  Texas,  and  they  should  properly  be  included  in  this  fourth  class. 

Louisiana. —  The  "equity"  recognized  in  this  state  is  the  power  of  the 
court  to  decide  according  to  natural  justice  in  all  cases  where  the  positive 
law  is  silent.  See  remarks,  ante,  §  345,  in  note;  Welch  v.  Thorn,  16  La.  188, 
196;  Kittridge  v.  Breaud,  4  Rob.  (La.)  79,  80,  39  Am.  Dec.  512;  Clarke  v. 
Peak,  15  La.  Ann.  407,  409. 

Texas.— Ogden  v.  Slade,  1  Tex.  13,  15;  Smith  v.  Clopton,  4  Tex.  109,  113; 
Spann  v.  Stern's  Adm'rs,  18  Tex.  556;  Seguin  v.  Maverick,  24  Tex.  526,  532, 
76  Am.  Dec.  117;  Herrington  v.  Williams,  31  Tex.  448,  460;  Jones  v.  Mc- 
Mahan,  30  Tex.   719,   728;   Newson  v.   Chrisman,  9  Tex.   113,   117;    Smith   v. 


■589  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §    356 

and  jurisdiction  have  therefore  been  made ;  they  have  been 
distinctly  recognized  and  unqualifiedly  admitted  by  the 
courts;  but  their  necessary  connection  with  the  general 
effects  produced  by  the  reformed  procedure  has  not  always 
been  clearly  perceived  and  announced.  I  shall  describe  the 
most  important  of  these  instances,  which  must  be  regarded 
as  exceptions  to  or  limitations  upon  the  general  proposi- 
tions contained  in  the  last  preceding  paragraph. 

§  356.  On  Certain  Equitable  Interests. — The  first  and  most 
palpable  of  these  necessary  changes  is  the  complete  abroga- 
tion of  a  certain  class  of  equitable  primary  rights,  and  the 
transformation  of  them  into  strictly  legal  rights.  This 
result  may  not,  under  the  circumstances,  be  of  much  prac- 
tical importance,  but  it  certainly  exists.    Prior  to  the  codes, 

Smith,  11  Tex.  102,  106;  Gross  v.  McCIaran,  8  Tex.  341,  344;  Coles  v.  Kel- 
■sey,  2  Tex.  541,  553,  47  Am.  Dec.  6G1;  Carter  v.  Carter,  5  Tex.  93,  100;  Wells 
V.  Barnett,  7  Tex.  584,  586;  Purvis  v.  Sherrod,  12  Tex.  140,  159.  Tlie  peculiar 
system  of  administering  justice,  with  respect  to  the  distinctions  between  law 
and  equity  which  prevails  in  Texas,  can  only  be  fully  understood  by  an 
■examination  of  these  decisions.  I  add  a  single  quotation  from  an  early  case. 
In  Smith  v.  Clopton,  4  Tex.  109,  113,  Hemphill,  C.  J.,  said:  "Before  the 
introduction  of  the  common  law,  the  distinction  between  law  and  equity  was 
altogether  unknown.  The  parties  stated  their  causes  of  complaint  and 
grounds  of  defense,  and  on  the  allegations  and  proofs  such  relief  was  afforded 
as  they  were  entitled  to  under  any  and  all  the  laws  of  the  land,  without 
reference  to  that  peculiarity  of  the  English  system  of  jurisprudence  which 
renders  the  rights  of  parties,  or  at  least  their  reliefs,  dependent  not  only 
upon  the  facts  of  their  case,  but  also  upon  the  form  in  which  redress  was 
sought.  Upon  the  introduction  of  the  common  law,  the  intention  of  the  legis- 
lature is  manifest  to  prevent  such  distinction  from  being  recognized,  at 
least,  to  an  extent  which  would  deprive  parties  of  any  relief  to  which  they 
may  be  entitled  under  the  rules  and  principles  of  either  law  or  equity.  By 
the  constitution  of  the  state,  and  by  subsequent  legislation,  the  distinction 
between  these  two  systems  is,  in  a  great  measure,  if  not  totally,  disregarded. 
.  .  .  Tlie  only  inquiry,  then,  to  be  made  at  the  institution  of  a  suit  is, 
whether  the  facts  of  the  case  are  such  as  to  entitle  a  party  to  a  judgment 
in  his  favor  in  either  law  or  equity;  and  if  he  have  rights  cognizable  by 
either,  such  relief  will  be  adjudged  by  the  court  as  the  nature  of  the  case 
demands.  The  rule  that  courts  of  equity  will  interfere  only  where  the 
party  is  remediless  at  law  has  but  little  application  under  a  system  in  which 
the  litigants  in  a  suit  can  demand  and  obtain  all  the  relief  which  can  be 
granted  by  either  courts  of  law  or  of  equity."  See  also  the  opinion  in  Coles 
V.  Kelsey,  2  Tex.  541,  553,  47  Am.  Dec.  661,  and  the  remarks  ante,  in  note 
oiinder  §  345. 


§    356  EQUITY    JURISPRUDENCE.  590" 

the  assignment  of  a  thing  in  action  conferred  upon  the  as- 
signee only  an  equitable  primary  right,  an  equitable  de- 
mand. It  is  true  that  the  courts  of  law  had,  in  the  course  of 
time,  come  to  recognize  and  protect  this  right,  by  permitting 
the  assignee  to  sue  at  law  in  the  name  of  his  assignor,  to 
control  the  action  and  judgment,  and  to  receive  the  pro- 
ceeds ;  but  still  the  right  was  no  less  equitable ;  the  assignee 
could  not  assert  his  own  claim  by  an  action  at  law  brought 
in  his  own  name.  In  all  the  states  where  it  prevails,  the  re- 
formed procedure  not  only  permits  but  requires  the  assignee 
of  a  thing  in  action  to  sue  upon  it  in  his  own  name  in  any 
legal  action  brought  for  its  recovery.  This  statutory  rule 
removes  the  last  vestige  of  the  equitable  nature  of  the  as- 
signee's interest,  and  transforms  his  claim  into  a  purely 
legal  one,  and  thus  at  one  blow  abolishes  a  well-defined 
division  or  portion  of  the  equity  jurisprudence.^  The 
courts  have  recognized  this  effect  of  the  legislation  in  chang- 
ing the  assignee's  right  from  an  equitable  into  a  legal  one^ 

1  It  is  idle  to  say,  as  has  been  said  by  some  judges,  that  the  codes  merely 
adopt  a  rule  of  practice  and  extend  to  legal  actions  the  rule  as  to  parties* 
which  had  prevailed  in  courts  of  equity,  and  that  the  right  of  the  assignee 
given  by  the  codes  is  only  an  equitable  one  (as,  for  example,  in  McDonald 
V,  Kneeland,  5  Minn.  352,  3G5),  because, —  1.  The  assignment  of  a  thing  in- 
action conferred  a  complete  equitable  interest  upon  the  assignee  prior  to  the 
codes,  so  that  the  provision  of  the  codes  does  not  create  his  equitable  right; 
and  2.  The  doctrine  of  equitj^  was  not  a  mere  rule  regulating  the  parties  to  a 
suit;  it  treated  the  assignee  as  equitable  owner,  as  clothed  w^ith  all  the  rights- 
of  his  assignor,  and  therefore  permitted  him  to  sue  in  his  own  name ;  but 
3.  The  sole  remaining  reason  why  the  assignee  did  not  obtain  a  legal  right  of 
ownership  was  found  in  the  purely  technical  rule  which  forbade  him  to  sue- 
at  law  in  his  own  name.  When  this  arbitrary  rule  was  abolished,  his  right 
of  necessity  became  a  legal  one.  The  origin  of  the  riile  at  law  is  found  in  the 
ancient  common-law  doctrines  concerning  maintenance;  but  these  had  long 
ceased  to  be  operative  in  tlie  United  States.  The  true  effect  of  the  reformed 
procedure  was  perceived  and  stated  by  that  most  able  and  learned  judge 
Mr.  Justice  Denio,  in  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  45,  88  Am. 
Dec.  208:  "The  law  of  maintenance  .  .  .  prohibited  the  transfer  of  the 
legal  property  in  a  chose  in  action,  so  as  to  give  the  assignee  a  right  of  action 
in  his  own  name.  But  this  is  now  abrogated;  and  such  a  demand  .  .  . 
may  be  sold  and  conveyed,  so  as  to  vest  in  the  purchaser  all  the  legal  as  well 
as  the  erpiitable  rigiits  of  the  original  creditor."* 

(«)  Sec  also  §  1273. 


591  JUDICL\L    INTERPEETATION    OF    JURISDICTION.         §    357 

but  they  have  not  perceived,  or  at  least  pointed  out,  its  bear- 
ing upon  the  general  mode  of  describing  the  results  pro- 
duced by  the  new  system.  It  is  hardly  necessary  to  say 
that  this  effect  is  confined  to  direct  assignments  of  legal 
things  in  action.  The  equitable  results  arising  from  the 
assignment  of  equitable  demands,  and  from  the  equitable 
assignment  of  funds,  and  the  like  are,  of  course,  unmodified. 
§  357.  On  Certain  Equitable  Remedies. —  But  there  is  an- 
other and  still  more  important  limitation  of  the  general 
proposition.  While  it  is  undoubtedly  true  that  with  the  ex- 
ception just  mentioned  of  the  right  conferred  upon  the 
direct  assignee  of  a  legal  thing  in  action,  all  the  equitable 
estates,  interests,  property,  liens,  and  other  primary 
rights^  recognized  by  the  equity  jurisprudence,  and  all  the 
principles,  doctrines,  and  rules  of  that  jurisprudence  which 
define  them,  determine  their  existence,  and  regulate  their 
acquisition,  transfer,  and  enjojonent,  are  untouched  and  un- 
affected, it  is  no  less  true  that  some  of  the  equitable  reme- 
dies and  remedial  rights  belonging  to  the  equity  juris- 
prudence, and  coming  within  the  equity  jurisdiction,  are  ma- 
terially modified,  if  not  indeed  destroyed  as  equitable  reme- 
dies and  remedial  rights,  by  the  reformed  procedure.  The 
union  of  legal  and  equitable  causes  of  action  in  the  same 

1  It  might  perhaps  be  said  that  the  case  of  one  of  two  or  more  joint 
debtors  dying,  and  the  equitable  claim  of  a  creditor  against  the  estate  of  such 
decedent,  was  also  an  exception.  At  the  common  law  no  indebtedness  exists 
against  the  estate  of  a  deceased  joint  debtor;  but  in  equity  the  creditor  has 
a  demand  still  continuing  which  he  can  enforce  by  an  equitable  suit,  under 
certain  restrictions.  In  several  of  the  states  the  creditor  is  permitted  to  sue 
the  representatives  of  the  deceased  debtor  at  law,  either  alone  or  jointly 
with  the  survivors,  and  without  having  exhausted  his  remedies,  or  even  taken 
any  steps  against  the  survivors.  In  short,  the  ancient  common-law  doctrine 
is  wholly  abrogated,  and  the  demand  against  the  estate  of  the  deceased 
joint  debtor  is  transformed  into  an  ordinary  legal  claim ;  the  original  legal 
debt  is  unaffected  by  the  death.  Great  as  is  this  change,  I  do  not  include 
it  among  those  described  in  the  text,  because  it  is  not  a  part  of  the  reformed 
procedure  as  an  entire  system.  This  particular  result  is  confined  to  a  few 
of  the  states,  and  depends  upon  peculiar  and  express  causes  of  their  own 
codes.  In  the  states  where  such  legislation  has  been  adopted,  the  effect  un- 
doubtedly is  a  change,  as  above  described,  in  equitable  primary  rights,  by 
transforming  tliem  into  strictly  legal  rights. 


§    358  EQUITY   JURISPRUDENCE.  592 

suit,  and  the  granting  of  legal  and  equitable  reliefs  by  the 
same  judgnient,  and  above  all,  the  granting  of  "ultimate 
legal  relief  by  the  judgment  as  though  some  prior  auxiliary 
equitable  relief  which  was  a  necessary  prerequisite  had 
actually  been  granted,  have  very  much  lessened  the  in- 
stances in  which  it  is  proper,  or  even  possible,  for  a  party 
to  maintain  distinctively  equitable  suits,  enforce  purely 
equitable  remedial  rights,  and  obtain  strictly  equitable  rem- 
edies according  to  the  settled  course  of  the  equitable  juris- 
diction.^ The  same  consequences  must  result  in  even  a 
still  more  marked  manner,  from  the  setting  up  of  equitable 
defenses  and  counterclaims,  and  the  obtaining  affirmative 
equitable  relief  against  the  plaintiffs  in  actions  which  at 
their  inception  are  purely  legal.  While  these  provisions  of 
the  new  system  do  not  absolutely  take  away  the  jurisdic- 
tion to  entertain  suits  for  the  enforcement  of  equitable 
rights,  and,  in  connection  therewith,  for  the  restraining  of 
pending  or  threatened  actions  at  law,  yet  they  certainly 
modify  that  jurisdiction,  and  in  a  great  number  of  instances 
render  its  exercise  unnecessary,  improper,  and  even  impos- 
sible.^ 

§  358.  On  the  Inadequacy  of  Legal  Remedies. —  Finally, 
if  the  true  spirit  and  intent  of  the  reformed  procedure  were 
fully  carried  out  by  the  courts,  I  think  that  in  all  the  states 

2  One  example  will  sufliciently  illustrate  this  point.  A  plaintiff  sues  upon 
a  written  agreement,  setting  forth  the  facts  entitling  him  to  a  reformation, 
and  seeking  to  recover  the  amount  due  upon  the  instrument  as  reformed. 
The  judgment  actually  rendered  is  merely  a  legal  judgment  for  the  recovery 
of  debt  or  damages,  the  equitable  relief  of  a  reformation  not  being  actually 
decreed,  but  being  assumed;  the  purely  legal  relief  is  awarded  exactly  as 
though  the  prior  auxiliary  equitable  relief  had  been  in  terms  granted.  See 
Bidwell  V.  Astor  Ins.  Co.,  16  N.  Y.  263,  267;  Phillips  v.  Gorham,  17  N.  Y. 
270;  Caswell  v.  West,  3  Thomp.  &  C.  383. 

3  I  cannot  at  present  enter  into  any  discussion  of  this  most  important 
question  ;  it  will  be  examined  in  a  subsequent  chapter  which  deals  with  in- 
junction. It  is  sufTicient  now  to  cite  a  few  cases  which  illustrate  the  subject 
mentioned  in  the  text:  Krie  ll'y  Co.  v.  Ramsey,  45  N.  Y.  037,  per  Folgcr,  J. ,• 
JMalto  V.  Deuster.  22  Wis.  482,  per  Dixon,  C.  J.;  Rogers  v.  Gwinn,  21  Iowa, 
r,H-  [lilfflder  v.  1^-vy,  9  Cal.  (JOT;  Anthony  v.  Dunlap,  8  Cal.  26;  Rickett  v. 
Joliiirton,  8  Cal.  34. 


593  JUDICIAL    INTERPRETATION    OF   JURISDICTION.         §    358 

where  it  prevails  the  question  whether  or  not  an  adequate 
remedy  can  be  obtained  at  law  would  cease  to  have  the 
slightest  importance  in  the  actual  decision  of  causes.  One 
of  the  plainest  purposes  of  the  new  system  is,  that  if  a  cause 
of  action  is  stated  in  the  pleading,  the  relief  to  which  the 
plaintiff  is  entitled  should  be  granted,  whether  that  relief 
be  legal  or  equitable.  A  suit  should  never  be  dismissed  on 
the  ground  that  a  court  of  equity  has  no  jurisdiction  of  the 
matter  because  the  plaintiff  has  an  adequate  remedy  at  law; 
it  should  be  retained  and  decided  as  an  action  at  law,  and 
the  adequate  legal  relief  should  be  awarded.^  The  correct- 
ness of  this  theory  is  generally  admitted,  but  the  courts  too 
often  fail  to  carry  the  theory  into  practice. 

1  Mr.  Chief  Justice  Hemphill  clearly  apprehended  this  necessary  result  of 
the  system  in  Smith  v.  Clopton,  4  Tex.  109,  113,  quoted  above,  in  the  note 
under  §  354. 

Vol.  I  — 38 


PART  SECOND, 


PART  SECOND. 

THE  MAXIMS  AND  GENERAL  PRINCIPLES  OF 
EQUITY  JURISPRUDENCE,  AND  THE  EVENTS 
WHICH  ARE  OCCASIONS  OF  EQUITABLE  PRI« 
MARY  OR  REMEDIAL  RIGHTS. 


PRELIMINARY  SECTION. 

ANALYSIS. 

§  359.  Objects,  questions,  and  divisions  stated. 
§  360.  Equitable  principles  described. 
§  361.  Equitable  doctrines  described. 
§  362.  Occasions  of  equitable  rights. 

§  359.  Questions  and  Divisions  Stated. —  Thns  far  the  dis- 
cussion has  been  conjEined  to  the  equity  jurisdiction,  or  the 
power  of  courts  to  entertain  and  determine  controversies 
involving  equitable  estates,  interests,  and  rights,  or  to 
award  remedies,  in  pursuance  of  the  doctrines,  methods, 
and  procedure  of  equity.  I  now  proceed  to  the  examination 
of  the  doctrines  and  rules  which  make  up  the  equity  juris- 
prudence. In  the  introductory  chapter  it  was  shown  that 
equity  jurisprudence,  considered  as  a  department  of  the 
municipal  law,  as  a  collection  of  practical  rules  adminis- 
tered by  the  courts,  is  separated  by  a  natural  line  of  division 
into  two  parts,  namely,  equitable  estates,  interests,  and 
primary  rights,  which  are  all  either  equitable  rights  of  prop- 
erty or  rights  analogous  to  property,  and  equitable  reme- 
dies and  remedial  rights.  There  are,  however,  certain 
elements  underlying  and  running  through  the  entire  body 
of  equity  jurisprudence,  which  must  be  explained  and  de- 
scribed in  all  their  fullness  and  force,  before  either  of 
these  two  great  divisions  can  be  dealt  with  in  a  complete 
and  accurate  manner.  As  clearly  appears  in  our  pre- 
liminary historical  sketch,  the  doctrines  and  rules  of  equity 

[597] 


§    360  EQUITY    JURISPRUDENCE.  598 

jurisprudence  are  not  arbitrary;  they  are,  to  a  very  great 
extent,  based  upon  and  derived  from  those  essential  truths 
of  morality,  those  unchangeable  principles  of  right  and  ob- 
ligation which  have  a  juridical  relation  with  and  applica- 
tion to  the  events  and  transactions  of  society.  These  ethi- 
cal truths  do  not,  however,  appear  in  equity  jurisprudence 
in  their  purely  abstract  form.  As  they  must  be  applied 
by  the  courts  to  juridical  relations  alone,  they  have  been 
made  to  assume  a  concrete  and  juridical  character,  without 
losing  at  the  same  time  any  of  their  inherent  ethical  nature. 
In  fact,  these  juridical  precepts  of  right  and  duty  are  the 
broad  foundations  upon  which  the  superstructure  of  equity 
jurisprudence  has  been  constructed;  they  are  the  sources 
from  which  most  of  those  doctrines  and  rules  have  been 
drawn  which  define  and  regulate  equitable  estates,  interests, 
and  rights,  and  control  the  administration  of  equitable 
remedies.  A  careful  examination  and  full  comprehension 
of  these  sources  —  these  fundamental  principles  —  are 
plainly  a  prerequisite  to  any  complete  and  accurate  knowl- 
edge and  understanding  of  the  doctrines  and  rules  which 
result  from  them. 

§  360.  Equitable  Principles. —  The  juridical  principles*  of 
morality  which  thus  constitute  the  ultimate  sources  of  equi- 
table doctrines  and  rules  are  of  two  classes  or  grades. 
Underlying  the  entire  body  of  equity  jurisprudence,  extend- 
ing through  every  one  of  its  departments,  and  shaping  to 
a  greater  or  less  extent  its  doctrines  concerning  almost 
■every  important  subject,  are  certain  broad  comprehensive 
precepts  which  are  commonly  denominated  maxims  of 
equity.  These  maxims  are  in  the  strictest  sense  the  prin- 
cipia,  the  beginnings  out  of  which  has  been  developed  the 
entire  system  of  truth  known  as  equity  jurisprudence.*  They 

1  It  is  important  to  obtain  an  accurate  notion  of  the  distinction  between 
"  principles  "  and  doctrines.  "All  principles  are  doctrines,  but  all  doctrines 
are  not  principles.  Those  properly  are  principles  which  contain  the  principia, 
tiie  beginnings  or  starting-points  of  evolution,  out  of  which  any  system  of 
truth  is  developed:"  De  Quincey.  "Rules"  are  still  more  particular  in 
their  application  and   narrow  in  thoir  scope  than  doctrines. 

(a)  The  text  is  .juolci   in  (Jnvin  v.  Curtin,  171  111.  G40,  49  N.  E.  523. 


599  PEELIMINAEY    SECTION.  §    361 

are  not  the  practical  and  final  doctrines  or  r  lies  which  de- 
termine the  equitable  rights  and  duties  of  ii  dividual  per- 
sons, and  which  are  constantly  cited  by  the  covrts  in  their 
decisions  of  judicial  controversies.  They  art  rather  the 
fruitful  germs  from  which  these  doctrines  and  i^ilas  have 
grown  by  a  process  of  natural  evolution.  The^  do  not 
exclusively  belong  either  to  the  department  which  tresis  of 
equitable  estates,  property,  and  other  primary  right3,  nor 
to  that  which  deals  with  equitable  remedies ;  their  creati\  e 
and  molding  influence  is  found  alike  throughout  both  ol 
these  departments.  Among  the  most  important  of  these 
principia  which  have  been  crystallized  into  the  pithy  form 
of  maxims  are  the  following :  Equity  regards  that  as  done 
which  ought  to  have  been  done ;  equity  looks  at  the  intent, 
rather  than  the  form;  equality  is  equity;  he  who  seeks 
equity  must  do  equity ;  he  who  comes  into  equity  must  come 
with  clean  hands.  While  it  cannot  be  said  that  these  and 
other  similar  principles  have  all  produced  the  same  or 
equal  effects  upon  the  development  of  equity  jurisprudence, 
yet  it  is  undeniable  that  a  vast  proportion  of  the  actual 
doctrines  and  rules  which  make  up  the  system  of  equity  are 
necessary  inferences  from  or  direct  applications  of  some 
one  or  more  of  these  fundamental  maxims.  It  is  evident, 
therefore,  that  any  full  and  accurate  discussion  of  the 
doctrines  and  rules  which  constitute  the  two  main  divisions 
of  equity  jurisprudence  as  heretofore  described  must  be 
preceded  by  an  examination  into  the  nature,  meaning,  ex- 
tent, and  effects  of  these  few  germinal  principles. 

§  361.  Equitable  Doctrines. —  In  addition  to  these  true 
principia,  these  principles  which  run  through  and  affect  all 
parts  of  equity  jurisprudence,  there  are  also  certain  other 
comjDrehensive  doctrines  which  are  purely  equitable,  and 
largely  serve  to  distinguish  the  system  from  the  ''  law." 
The  doctrines  to  which  I  refer  are  neither  equitable  estates. 
nor  property,  nor  remedies,  nor  are  they  exclusively  con- 
cerned either  with  equitable  estates  and  other  similar  rights. 
or  with  equitable  remedies;  on  the  contrary,  they  affect  to 
a  greater  or  less  extent  both  the  equitable  rights  of  prop- 


§    362  EQUITY   JURISPRUDENCE.  600 

erty  and  the  administration  of  equitable  remedies.  It  seems 
expedient,  therefore,  in  order  to  avoid  unnecessary  repeti- 
tion,—  even  if  this  arrangement  is  not  essential  in  any 
scientific  method, —  that  the  investigation  of  these  peculiar 
doctrines  should  precede  the  discussion  of  equitable  estates, 
interests,  and  other  primary  rights,  and  of  equitable  reme- 
dies. The  following  are  illustrations  of  the  doctrines  which 
constitute  this  special  class:  The  equitable  doctrines  con- 
cerning penalties  and  forfeitures;  the  doctrine  concerning 
priorities;  the  doctrine  concerning  notice;  the  doctrine  of 
election.  All  of  these  are  very  comprehensive  in  their 
nature  and  effects,  and  are  the  immediate  sources  of  numer- 
ous rules  in  all  branches  of  equity  jurisprudence. 

§  362.    Occasions  of  Equitable  Rights Finally,  there  are 

certain  facts  or  events  which  are  the  occasions  of  numerous 
equitable  rights,  both  primary  and  remedial,  and  which 
thus  give  rise  to  important  doctrines  and  rules  in  every 
branch  of  equity  jurisprudence.  These  facts  and  events 
have  sometimes  been  described  as  forming  a  part  of  the  con- 
current jurisdiction;  but  this  view,  as  has  already  been 
shown,  is  superficial  and  erroneous.  The  facts  and  events 
which  are  thus  peculiarly  the  occasions  of  equitable  rights 
are  fraud,  mistake,  and  accident.  Under  the  system  of 
classification  which  I  have  adopted,  these  subjects  do  not 
exclusively  belong  either  to  the  department  of  equitable  es- 
tates and  other  primary  rights,  nor  to  that  of  equitable 
remedies.  Although  not  the  sources  of  rules,  like  the  prin- 
ciples and  doctrines  mentioned  in  the  foregoing  paragraphs, 
they  are  the  occasions  which  give  rise  to  a  large  number  of 
rules,  and  their  examination  should,  in  any  proper  order, 
precede  the  discussion  of  equitable  property  and  equitable 
remedies.  This  second  part  will  therefore  be  separated  into 
three  chapters,  of  which  the  first  will  be  devoted  to  the 
fundamental  maxims  of  equity,  the  second  to  the  group  of 
peculiarly  equitable  doctrines  above  described,  and  the 
third  to  the  special  facts  and  events  which  are  the  occa- 
sions of  many  equitable  rights  and  remedies. 


601      BEGABDS    THAT    DONE    WHICH    OUGHT    TO    BE   DONE.    §    363 


CHAPTER  I. 

THE  FUNDAMENTAL  PRINCIPLES  OR  MAXIMS  OF 

EQUITY. 


SECTION   L 

EQUITY  REGARDS  THAT  AS  DONE  WHICH  OUGHT  TO  BE  DONE. 

ANALYSIS. 

§  363.  List  of  equitable  maxims. 

§  364.  Equity  regards  as  done  what  ought  to  be  done;  its  importance. 
f§  365-377.  Its  true  meaning,  and  its  effects  upon  equitable  doctrines. 
S§  366-369.  Is  the  source  of  equitable  property  and  estates. 

§  366.  Sources  of  legal  property  or  titles  described. 

§  367.  Effect  of  an  executory  contract  at  law. 

§  368.  Effect  of  an  executory  contract  in  equity. 

§  369.  Sources  of  all  kinds  of  equitable  property  described. 
§§  370-376.  The  equitable  estates  which  are  derived  from  this  principle. 

§  371.  Conversion. 

§  372.  Contracts  for  the  purchase  and  sale  of  lands. 

§  373.  Assignments  of  possibilities;  sale  of  chattels  to  be  acquired  in 
the  future;  assignments  of  things  in  action;  equitable  assign- 
ments  of   moneys;    and   equitable   liens. 

8  374.  Express  trusts. 

>§  375.  Trusts  arising  by  operation  of  law. 

§  376.  Mortgage;   equity  of  redemption. 

§  377.  Conclusions. 

§  363.  List  of  Maxims. —  Those  principles  whicli  are  sa 
fundamental  and  essential  that  they  may  with  propriety  he 
termed  the  maxhns  of  equity  are  the  following:  Equity  re- 
gards that  as  done  which  ought  to  be  done ;  equity  looks  to 
the  intent,  rather  than  to  the  form;  he  who  seeks  equity 
must  do  equity;  he  who  comes  into  equity  must  come  with 
clean  hands ;  equality  is  equity ;  where  there  are  equal  equi- 
ties, the  first  in  time  shall  prevail;  where  there  is  equal 
equity,  the  law  must  prevail;  equity  aids  the  vigilant,  not 
those  who  slumber  on  their  rights,   or  V igilantihus  non 


§    364  EQUITY    JUKISPRUDENCE.  602 

dormienilhus.  ccquitas  siihvenit;  equity  imputes  an  intention 
to  fulfill  an  obligation ;  equity  will  not  suffer  a  wrong  with- 
out a  remedy;  and  equity  follows  the  law.  It  must  not  be 
supposed  that  all  these  maxims  are  equally  important,  or 
that  all  have  been  equally  fruitful  in  the  development  of 
doctrines  and  rules;  but  it  is  not  an  exaggeration  to  say 
that  he  who  has  grasped  them  all  with  a  clear  comprehen- 
sion of  their  full  meaning  and  effects  has  already  obtained 
an  insight  into  whatever  is  essential  and  distinctive  in  the 
system  of  equity  jurisprudence,  and  has  found  the  explana- 
tion of  its  peculiar  doctrines  and  rules.*  I  purpose,  in  the 
successive  sections  of  this  chapter,  to  discuss  them  in  the 
order  given  above. 

§  364,  First  Maxim:  Its  Importance  and  General  Opera- 
tion."—  The  first  maxim  in  the  list  has  been  stated  in  some- 
wliat  varying  language  by  different  text-writers,  but  with- 
out any  substantial  variation  in  the  meaning.^  I  think  the 
following  form  is  both  strictly  accurate  and  sufficiently  com- 
prehensive in  expressing  the  equitable  principle:  Equity 
regards  and  treats  that  as  done  which  in  good  conscience 
ought  to  be  done.  Some  writers  have  failed  to  apprehend 
the  full  significance  of  this  maxim,  and  have  described  its 
effects  in  altogether  a  too  narrow  and  partial  manner.^ 
Others  have  correctly  looked  upon  it  as  the  very  foundation 
of  all  distinctively  equitable  property  rights,  of  all  equi- 

1  "  Equity  looks  upon  that  as  done  which  ought  to  have  been  done:"  Story  "a 
Eq.  Jur.,  §  64  g;  Sncll's  Equity,  37  (10).  "What  ought  to  be  done  is  to 
be  considered  as  done:"    2  Spence's  Eq.  Jur.  253;  Adams's  Equity,  135. 

2  Thus  Mr.  Justice  Story  (1  Eq.  Jur.,  §  64  g),  and  Mr.  Snell  (Snell's 
Equity,  37)  following  him,  say:  "The  true  meaning  of  this  maxim  is,  that 
equity  will  treat  the  subject-matter  of  a  contract,  as  to  collateral  consequences 
and  incident.s,  in  the  same  manner  as  if  the  final  acts  contemplated  by  the 
parties  had  been  executed  exactly  as  they  ought  to  have  been,  not  as  they 
might  have  been,  executed.  .  .  .  The  most  frequent  cases  of  the  application 
of  the  rule  arc  under  agreements."  Tliis  description  is  merely  the  substi- 
tuting one  practical  result  of  the  principle  in  the  place  of  the  principle 
itself. 

§    303,     (a)  Tlie    text    is    cited    in  §  364,   (a)  Sections  364  et  seq.  are 

Otis  V.  Gregory.  Ill  Ind.  504,  13  cited  in  Woodbury  v.  Gardner,  77  Me. 
N.  E.  39.  68,  75. 


603      REGARDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    364 

table  estates  and  interests,  both  real  and  personal.^  It  is  in 
fact  the  source  of  a  large  part  of  that  division  of  equity 
jurisprudence  which  is  concerned  with  equitable  property; 
the  doctrines  and  rules  which  create  and  define  equitable 
estates  or  interests  are  in  great  measure  derived  from  its 
operation.  So  far  from  the  maxim  being  confined  to  ex- 
press executory  contracts,  and  to  those  dispositions  of  prop- 
erty which  give  rise  to  an  equitable  conversion,  it  has  been 
applied  by  the  most  eminent  courts  to  all  classes  of  equities ; 
to  every  instance  where  an  equitable  oiigM  with  respect  to 
the  subject-matter  rests  upon  one  person  towards  another; 
to  every  kind  of  case  where  an  afiirmative  equitable  duty  to 
■do  some  positive  act  devolves  upon  one  party,  and  a  corre- 
sponding equitable  right  is  held  by  another  party.* ''   When- 

SAdams's  Equity,  135  (6th  Am.  ed.,  p.  295)  :  "'What  ought  to  be  done  is 
considered  in  equity  as  done;'  and  its  meaning  is,  that  whenever  the  holder 
of  property  is  subject  to  an  equity  in  respect  of  it,  the  court  will,  as  between 
the  parties  to  the  equity,  treat  the  subject-matter  as  if  the  equity  had 
been  worked  out,  and  as  impressed  with  the  character  which  it  would  then 
have  borne.  The  simplest  operation  of  this  maxim  is  found  in  the  rule  that 
trusts  and  equities  of  redemption  are  treated  as  estates;  but  its  effect  is 
most  obvious  in  the  constructive  change  of  property  from  real  to  personal 
estate,  and  vice  versa,  so  as  to  introduce  new  laws  of  devolution  and 
transfer."  The  examples  given  of  trusts  and  equities  of  redemption  plainly 
Bhow  that  Mr.  Adams's  definition  was  intended  to  include  all  equitable  prop- 
erty as  resulting  from  this  single  principle.  This  is  also  the  view  of  Mr. 
Spence.  He  expressly  represents  all  trust  and  other  equitable  estates, 
whether  growing  out  of  executory  contract  creating  the  trust,  or  out  of  a  will, 
or  otherwise,  as  the  consequences  of  this  fruitful  maxim.  See  2  Spence's  Eq. 
Jur.  253  et  seq.,  and  also  the  titles  Trusts  and  Equitable  Estates. 

4  Frederick  v.  Frederick,  1  P.  Wms.  710.  A  person  had  contracted  to  be- 
come a  citizen  of  London,  but  died  before  he  had  carried  this  agreement  into 
€ffect  by  taking  up  his  freedom.  His  widow  thereupon  brought  a  suit  to 
procure  his  personal  estate  to  be  distributed  in  accordance  with  the  customs 
of  London,  which  applied  to  citizens  only,  and  which  prescribed  a  very 
different  mode  of  distribution  from  that  which  prevailed  under  the  statute 

(b)  The  text  is  quoted  in  Sourwine  44  Atl.  115.  In  Sourwine  v.  Su- 
V.  Supreme  Lodge,  12  Ind.  App.  447,  preme  Lodge,  supra,  12  Ind.  App.  447, 
452,  453,  54  Am.  St.  Rep.  531,  536,  452,  453,  54  Am.  St.  Rep.  532,  536,  40 
40  N.  E.  646 ;  cited.  Lynch  v.  Moser,  N.  E.  640,  a  member  of  a  beneficial 
72  Conn.  714,  46  Atl.  153;  Shipman  association  in  good  standing  and  en- 
V.  Lord,  58  N.  J.  Eq.  380,  44  Atl.  215  ;  titled  under  its  constitution  and  by- 
affirmed,  60  N.  J.  Eq.  484,  46  Atl.  laws  to  be  transferred  from  one  en- 
HOl;   Preston  v.  Russell,  71  Vt.  151,  dowment  cla^s  to  another,   requested 


§    364  EQUITY    JURISPRUDENCE.  604 

ever  courts  of  high  aut^  ,ority  have  dealt  with  the  principle 
in  a  narrower  manne:- ,  and  have  given  to  it  a  more  re- 
stricted operation  anrj  effect,  their  language,  although  per- 
haps very  general  iv  its  terms,  should  be  taken  as  confined, 
and  as  intended  by  ohe  court  to  be  confined,  to  the  particular 
apf)lication  of  the  maxim  then  under  judicial  investigation.'^ 

in  other  parts  of  England.  The  court,  invoking  the  maxim,  held  that  the- 
deceased  should  be  regarded  as  though  he  were  actually  a  citizen  at  the  time 
of  hi?  d'-ath,  and  that  his  estate  should  be  distributed  in  pursuance  of  the- 
cuptc-a.  This  decision  clearly  exhibits  the  universality  of  the  maxim: 
Bi'/sess  V.  \Vheate,  1  W.  Black.  123,  129,  1  Eden,  177;  Lechmere  v.  Earl 
of  Carlisle,  3  P.  Wms.  211;  Brewer  v.  Herbert,  30  Md.  301,  96  Am.  Dec.  582; 
McCaa  v.  Woolf,  42  Ala.  389;  Jordan  v.  Cooper,  3  Serg.  &  R.  585;  Gardiner 
V.  Gerrish,  23  Me.  46;  Peter  v.  Beverly,  10  Pet.  534,  563;  Taylor  v.  Benham, 
5  How.  234,  269;  Commonwealth  v.  Martin,  5  Munf.  117,  122;  Pratt  v. 
Taliaferro,  3  Leigh,  428;  Coventry  v.  Barclay,  3  De  Gex,  J.  &  S.  320,  328,  per 
Lord  Chancellor  Westbury.  In  this  case  the  question  in  dispute  was,  whether 
a  partner  —  Bevan  —  was  bound  by  certain  accounts  settled  with  his  co- 
partners, O'-  whether  he  could  disregard  them,  and  have  a  general  accounting- 
gone  ir.tf\  By  the  partnership  articles  it  was  stipulated  that  on  a  certain 
day  cp-ch  year  the  accounts  of  the  whole  past  year  should  be  made  up, 
pres/^rtpd  to  all  the  partners,  settled,  and  signed  by  each.  At  the  appointed 
day  in  one  year  the  accounts  were  thus  made  up,  and  laid  before  all  the 
firm,  except  Bevan,  settled  and  signed  by  them.  Bevan  was  not  present,  on 
account  of  illness,  and  never  signed  these  accounts,  but  afterwards  saw  them^ 
and  verbally  assented  or  agreed  to  their  correctness.  The  same  took  place  on 
another  year.  On  these  facts  Lord  Westbury  said  ( p.  228 )  :  "It  is  the 
rule  of  a  court  of  equity  to  consider  that  as  done  which  ought  to  be  done ; 
and  if,  therefore,  I  find  that  the  accounts  and  valuation  of  July,  1800, 
at  the  making  of  which  Mr.  Bevan  was  not  present,  were  afterwards  ac- 
cepted and  agreed  to  by  him,  I  shall  hold  that  the  account  was  in  equity 
signed  by  him  at  the  time  wlien  it  was  so  accepted."  Here,  it  will  be  seen, 
this  most  able  judge  applied  the  maxim,  not  to  the  title  and  property 
in  laiid  or  chattels,  but  to  a  purely  personal  act,  and  held  that  equity  would 
regard  such  a  personal  act  as  done,  although  in  fact  it  never  was  done, 
because  it  ought  to  be  done.  The  case  is  in  exact  harmony  with  Frederick  v. 
Frederick,  1  P.  Wms.  710. 

6  Tliis  is  the  universal  rule  for  the  interpretation  of  judicial  dicta,  and  it 
is    the    onlv   mode   of   avoiding   irreconcilable   conflict   of   opinion.      The   nar- 

to  be  so  transferred,  and  did  all  that  passage  of  the  text,  granted  relief  a» 

could  be   required   of   him    to   entitle  though  the  transfer  had  been  efi"ected. 

him   to  enter  such   class,  but  his  re-  For  other  illustrations  of  the  maxim, 

quest  wa-s  wrongfully  and  arbitrnrily  see    Ames    v.    Richardson,    29    I\Iinn. 

refused.     After  his  death,  the  court,  330,  13  N.  W.  137;  Newkirk  v,  Mar« 

rofogni/iiig  tlie  flexibility  of  equitiible  shall,  35  Kan.  77,  10  Pac.  571. 
rciiKilics,     and     (juotiiig     the     above 


605      REGARDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    365 

§  365.  Its  Meaning  and  Effects. —  Wliat  is  tlie  true  mean- 
ing of  the  principle,  taken  in  its  most  comprehensive  and 
generic  sense  ?  and  what  are  its  true  effects  upon  the  system 
of  distinctive  doctrines  and  rules  which  constitute  the 
equity  jurisprudence?  In  the  first  place,  it  should  be  ob- 
served that  the  principle  involves  the  notion  of  an  equitable 
obligation  existing  from  some  cause;  of  a  present  relation 
of  equitable  right  and  duty  subsisting  between  two  parties, 
—  a  right  held  by  one  party,  from  whatever  cause  arising, 
that  the  other  should  do  some  act,  and  the  corresponding 
duty,  the  ought  resting  upon  the  latter  to  do  such  act. 
Equity  does  not  regard  and  treat  as  done  what  might  be 
done,  or  what  could  be  done,  but  only  what  ought  to  be  done. 
Nor  does  the  principle  operate  in  favor  of  every  person,  no 
matter  what  may  be  his  situation  and  relations,  but  only  in 
favor  of  him  who  holds  the  equitable  right  to  have  the  act 
performed,  as  against  the  one  upon  whom  the  duty  of  such 
performance  has  devolved.^  Wherever  between  two  par- 
row  and  restricted  effect  given  to  the  maxim  is  most  frequently  found  in 
decisions  concerning  equitable  conveision;  and  it  has  no  other  legitimate 
meaning  than  that  of  defining  the  limits  within  which  the  principle  can 
operate  in  such  cases.  See  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1  Eden, 
177;  Craig  v.  Leslie,  3  Wheat.  563,  577,  per  Washington,  J.;  Douglas  Co. 
V.  Union  Pacific  R.  R.,  5  Kan.  615. 

1  This  true  meaning  of  the  principle  was  admirably  stated  by  Sir  Thomas 
Clarke,  M.  R.,  in  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1  Eden,  177: 
"  Nothing  is  looked  upon  in  equii-y  as  done  but  what  ought  to  have  been 
done,  not  what  might  have  been  done.  Nor  will  equity  consider  things  in 
that  light  in  favor  of  everybody;  but  only  of  those  who  had  a  right  to  pray 
it  might  be  done.  The  rule  is,  that  it  shall  either  be  between  the  parties 
who  stipulate  what  is  to  be  done,  or  those  who  stand  in  their  place."  In 
the  last  sentence  the  judge  is  merely  speaking  by  way  of  illustration  of  the 
case  where  the  right  and  duty  arise  from  an  express  executory  contract; 
he  has  no  intention  of  confining  the  operation  of  the  maxim  to  such  con- 
tracts. While  this  passage  presents  the  maxim  in  its  true  meaning  and 
with  its  true  limitations  under  all  circumstances  of  its  application,  there 
are  some  other  judicial  dicta  which  must  be  carefully  confined  to  the  par- 
ticular facts  of  the  case  in  which  they  were  uttered,  or  else  they  would  be 
quite  misleading,  and  some,  perhaps,  which  do  not  even  admit  of  this  ex- 
planation, but  must  be  regarded  as  essentially  erroneous.  Thus  in  the 
leading  American  case  of  Craig  v.  Leslie,  3  Wheat.  563,  577,  a  testator, 
citizen  of  the  United  States,  devised  all  his  lands  to  trustees,  with  direc- 


§    365  EQUITY    JURISPRUDENCE.  606 

ties,  A  and  B,  an  *  *  equity  ' '  exists  with  respect  to  a  subject- 
matter  held  by  one  of  them,  B,  in  favor  of  the  other.  A, 
then  as  between  these  two  a  court  of  equity  regards  and 
treats  the  subject-matter  and  the  real  beneficial  rights  and 
interests  of  A  as  though  the  *'  equity  "  had  actually  been 
worked  out,  and  as  impressed  with  the  character  and  having 

tions  to  convert  the  same  into  money  and  pay  the  proceeds  to  the  testator '» 
brother,  who  was  an  alien.  The  attorney-general  of  Virginia,  in  which 
state  the  lands  were  situated,  claimed  that  the  lands  of  the  testator  had  es- 
cheated to  that  state.  The  only  question  for  decision  was,  whether,  by  the 
doctrine  of  equitable  conversion,  the  real  estate  devised  by  the  testator 
was  to  be  regarded  as  money,  so  that  the  alien  legatee  could  claim  and  hold 
the  bequest,  or  whether  it  remained  real  estate,  and  so  was  liable  to  an 
escheat.  The  court,  with  a  very  elaborate  examination  of  the  authorities 
and  discussion  of  the  rules  upon  the  subject,  held  that  an  equitable  con- 
version had  taken  place,  and  the  gift  was  therefore  valid  as  a  bequest  of 
personal  property.  In  his  opinion  Mr.  Justice  Washington  said:  "The 
principle  upon  which  the  whole  of  this  doctrine  is  founded  is,  that  a  court 
of  equity,  regarding  the  substance,  and  not  the  mere  form  and  circumstances 
of  agreements  and  other  instruments,  considers  things  directed  or  agreed  to 
be  done  as  having  been  actually  performed,  where  nothing  has  intervened  to 
prevent  a  performance.  This  qualification  of  the  more  concise  and  general 
rule  that  equity  considers  that  to  be  done  which  is  agreed  to  be  done  will 
comprehend  the  cases  which  come  under  this  head  of  equity."  It  is  evident 
that  the  judge  is  here  speaking  of  the  maxim  solely  in  its  connection  with 
the  particular  doctrine  of  "  equitable  conversion."  He  shows  no  intention  of 
narrowing  it,  or  of  stating  any  qualification  upon  it,  in  its  application  to  or 
efTect  upon  the  equity  jurisprudence  in  general.  In  Douglas  Co.  v.  Union  Pac. 
R.  11.,  5  Kan.  615,  the  only  question  was,  whether  lands  held  by  the  railroad 
were  liable  to  be  taxed  for  county  purposes.  The  company  was  in  pos- 
session of  the  land  under  a  statute  or  contract  with  the  United  States,  but 
their  ultimate  right  and  title  to  the  land  depended  upon  their  performance 
of  numerous  stringent  conditions,  none  of  which  were  yet  performed.  By 
the  terms  of  the  contract,  all  these  conditions  must  be  fully  performed  at  the 
very  times  specified,  and  a  failure  to  perform  any  one  within  the  time  for- 
feited the  company's  whole  right.  The  county  oflicers  invoked  the  maxim, 
and  claimed  that  the  railroad  were  equitable  owners.  The  court  held  tliat 
the  interest  of  the  company  was  so  conditional,  contingent,  and  uncertain 
that  it  was  not  property  susceptible  of  taxation.  This  disposed  of  the  whole 
case.  The  maxim  under  discussion  plainly  had  no  application,  for  as  yet 
there  was  no  obligation  upon  the  United  States  to  convey.  Equity  could  not 
regard  anything  as  done,  because  there  was  nothing  yet  which  ought  to  be 
done.  Notwitli.standing  this,  the  court  went  on  as  follows:  "In  equity 
there  is  a  maxim  that  equity  will  consider  as  done  that  wliieli  ought  to  l)e 
done,  and  that  it  will  look  upon  all  things  agreed  to  be  done  as  actually 
p<;rformcd.  As  an  application  of  tliis  maxim,  equity  generally  considers 
that  wiicu  land  is  sold  on  credit,  and  the  deed  is  to  be  made  wiieu  the  pur- 


607      REGAKDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    365- 

the  nature  which  they  then  would  liave  borne.^  When  in 
this  proposition  it  is  said  that  an  ''  equity  "  exists  between 
the  two  parties,  the  meaning  is,  tliat  some  equitable  obliga- 
tion to  do  some  positive  act  with  respect  to  the  subject- 
matter,  arising  from  a  cause  recognized  by  the  rules  of 
equity  jurisprudence,  rests  upon  B,  and  a  corresponding 
equitable  right  to  have  the  act  done  by  B  with  respect  to 
the  same  subject-matter  springing  from  the  same  efficient 
cause,  is  held  by  A.  This  active  relation  subsisting  between 
the  two  parties,  a  court  of  equity,  partly  acting  upon  its 
fundamental  principle  of  going  beneath  the  mere  external 
form  and  appearance  of  things  and  dealing  with  the  real 
fact,  the  real  beneficial  truth,  and  partly  for  the  purpose 
of  making  its  remedies  more  complete,  treats  the  resulting 
rights  of  A  as  though  the  obligation  of  B  had  already  been 
performed;  regards  A,  in  fact,  as  clothed  with  the  same 
ultimate  interests  in  the  subject-matter  which  he  would  re- 
ceive and  hold  if  B  had  actually  fulfilled  his  obligation  by 
doing  the  act  which  he  ought  to  do.  Of  course  this  interest 
thus  possessed  by  A  is  and  must  be  a  purely  equitable  one, 
recognized  by  courts  of  equity  alone,  since  no  legal  interest 
in  the  subject-matter  could  become  vested  in  A  except  by 
the  complete  performance  of  his  obligation  on  the  part  of 
B, —  his  really  doing  the  act  which  his  duty  bound  him  to  do. 

chase-money  is  to  be  paid,  that  the  land  at  the  time  the  sale  is  made  beeomea 
the  vendee's  and  the  purchase-money  the  vendor's;  that  the  vendor  becomes 
at  once  the  trustee  of  the  vendee  with  respect  to  the  land,  and  the  vendee 
the  trustee  of  the  vendor  with  respect  to  the  purchase-money.  But  this  maxim 
never  applies  where  time  is  of  the  essence  of  the  contract,  and  where  the  land 
is  subject  to  absolute  forfeiture  on  failure  of  some  condition  of  the  sale  being 
performed;  for  there  is  no  necessity  in  such  a  case  for  courts  of  equity 
to  resort  to  any  such  fiction,"  etc.  I  only  wish  to  notice  this  very  remarkable 
expression  of  the  court,  which  represents  the  operation  of  this  fundamental 
principle  of  equity  jurisprudence  as  a  fiction.  If  the  equitable  estate  of  the 
vendee  in  an  executory  contract  for  the  sale  of  land  is  a  fiction,  then  every 
other  species  of  equitable  property  and  interest  must  be  equally  a  fiction,  for 
they  all  stand  upon  the  same  principle,  and  in  fact  the  greater  part  of  equity 
jurisprudence  must  be  fictitious:  See  Daggett  v.  Eankin,  31  Cal.  321,  32G,  per 
Currey,  J. 

2  See  Adams's  Equity,  135   (Gth  Am.  ed.,  p.  295). 


§    366  EQUITY    JURISPRUDENCE.  608 


•o 


§  366.  Is  the  Source  of  Equitable  Property  —  Sources  of 
Legal  Property  or  Titles. —  All  kinds  of  equitable  property, 
-as  distinguished  from  legal  ownership,  are,  with  perhaps 
one  or  two  particular  exceptions,  derived  from  this  fruitful 
and  most  just  principle.  Its  full  operation  can  best  be 
understood  and  appreciated  from  a  brief  comparison  of  the 
modes  in  which  absolute  property  —  that  is,  the  perfect 
right  of  ownership,  dominium  —  arises  or  is  acquired  at 
law,  with  the  modes  in  which  the  analogous  right  of  prop- 
erty arises  according  to  the  doctrines  of  equity.  In  the 
earliest  and  rudest  periods  of  the  common  law  absolute 
property  could  only  be  acquired  inter  vivos  by  the  accurate 
observance  of  certain  arbitrary,  external  forms,  or  symbolic 
acts  and  gestures.^  Although  with  an  advancing  civiliza- 
tion these  external  and  symbolic  acts  have  disappeared, 
still,  down  to  the  present  time  the  only  absolute  property 
or  right  of  ownership  which  the  law  recognizes,  and  which 
courts  of  law  protect  by  their  legal  actions  and  remedies, 
whether  in  land  or  in  things  personal,  must  arise  and  be 
acquired  in  certain  fixed,  determinate  methods,  which  alone 
constitute  the  "titles"  known  to  the  law, —  using  that 
word  in  its  strict  and  true  sense  as  means  of  acquiring  prop- 
erty. Without  following  some  one  of  these  certain  modes, 
no  legal  property  can  be  obtained  or  transferred  as  be- 
tween persons  in  their  private  capacities.^  The  most  im- 
portant of  these  common-law  methods  which  must  be 
pursued  in  order  that  a  legal  property  may  be  acquired  in 
land  are :  A  conveyance  under  seal  whereby  the  seisin  was 
transferred ;  a  will ;  inheritance ;  marriage  whereby  a  free- 

1  Tliis  is  true  of  every  system  of  national  law  in  its  earliest,  semi-bar- 
barous, and  purely  customary  stage.  The  "  livery  of  seisin  "  of  the  Saxon 
and  ancient  cominon  law  was  identical  in  principle  with  the  "  mancipation  " 
by  wliich  complete  dominion  could  alone  be  transferred  in  the  primitive 
Roman  law,  —  the  early  jus  civile. 

2  Ab  I  am  speaking  only  of  private  relations,  I  purposely  omit  all  men- 
tion of  the  public  modes  in  which  property  might  be  acquired  by  the  state, 
—  escheat,  forfeiture,  eminent  domain,  and  the  like, —  and  also  those  semi- 
public  methods  allowed  by  statutes  in  which  property  is  vested  in  certain 
official  persons,  uuch  as  assignees  in  bankruptcy  or  insolvency,  and  the  like. 


'609      REGAKDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    366 

hold  estate  for  life  might  be  vested  in  one  of  the  spouses; 
actual  disseisin  with  an  adverse  possession  during  the 
period  prescribed  by  the  statute  of  limitations ;  and  under 
very  special  circumstances,  accession.^  The  important 
modes  of  acquiring  a  legal  property  in  things  personal  are: 
A  true  present  sale  or  bailment  where  the  chattel  is  in  exist- 
'Cnce  and  capable  of  immediate  manual  transfer;  a  will;  a 
succession  in  case  of  intestacy  as  regulated  by  the  statute  of 
distributions;  marriage;  adverse  possession  aided  by  the 
statute  of  limitations;  occupancy;  and  the  various  acts 
^hich  are  included  under  the  generic  term  "  accession."'* 
Unless  a  person  has  obtained  the  legal  property  in  a  specific 
tract  of  land  through  some  one  of  the  foregoing  modes,  he 
cannot  as  demandant  maintain  a  real  action  to  recover 
such  land,  or  as  lessor  of  the  plaintiff  imder  the  ancient 
practice,  or  as  plaintiff  under  the  modern,  maintain  an 
action  of  ejectment  for  the  same  purpose.  A  legal  estate 
acquired  by  some  legal  title  is  indispensable.  Upon  the 
isame  principle,  unless  a  person  has  a  legal  property  in  a 
tspecific  chattel,  obtained  through  some  mode  recognized 
by  the  law,  he  cannot  as  plaintiff  maintain  any  of  the  pro- 
prietary actions  at  law  for  the  purpose  of  recovering  the 
article  itself,  or  its  value  in  money,  or  damages  for  an  in- 
vasion of  his  ownership,  replevin  or  detinue,  trespass  or 
trover.  While  he  may  have  legal  rights  with  respect  to 
the  thing,  which  courts  of  law  will  protect,  and  for  the 
violation  of  which  he  may  be  entitled  to  appropriate  legal 
remedies,  his  legal  right  of  property  can  only  arise  and 
^xist  upon  the  occasion  of  certain,  determinate  acts  or 
events.^ 

3  The  case  of  "  alluvion,"  where  the  proprietor's  land  grows,  as  it  were. 

*  In  all  the  instances  where  property  is  divested  and  transferred  through 
the  agency  of  some  administrative  officer, —  e.  g.,  a  sheriff  acting  in  pur- 
suance of  a  judicial  authority, —  the  final  means  of  transfer  and  of  acquisi- 
tion is  a  sale  in  case  of  chattels,  and  a  conveyance  in  case  of  land.  The  only 
real  distinction  between  these  cases  and  those  of  ordinary  sales  and  con- 
veyances lies  in  the  person  who  as  vendor  or  grantor  makes  the  transfer. 

5  The  Roman  law  furnished  a  complete  analogy  to  this  condition  in  our 
own  jurisprudence.     The  absolute  dominium,  or  property  ex  jure  quiritum. 

Vol.  1  —  39 


§    367  EQUITY    JURISPRUDENCE.  610 

§  367.  Effect  of  an  Executory  Contract  at  Law. —  What  is 
the  effect  at  law  of  a  contract  whereby  the  owner  agrees  to 
sell  and  convey  a  designated  tract  of  land,  but  which  is  not 
a  ti-ne  conveyance  operating  as  a  present  transfer  of  the 
legal  estate  and  the  legal  seisin?  It  is  wholly,  in  every 
particular,  executory,  and  produces  no  effect  upon  the  re- 
spective estates  and  titles  of  the  parties,  and  creates  no 
interest  in  nor  lien  or  charge  upon  the  land  itself.  The 
vendor  remains^  to  all  intents,  the  owner  of  the  land;  he 
can  convey  it  to  a  third  person  free  from  any  legal  claim 
or  encumbrance ;  he  can  devise  it  in  the  same  manner ;  on  his 
death  intestate,  it  descends  to  his  heirs.  The  contract  in 
no  manner  interferes  with  his  legal  right  to  and  estate  in 
the  land,  and  he  is  simply  subject  to  the  legal  duty  of  per- 
forming the  contract,  or  to  the  legal  liability  of  paying  such 
damages  for  its  non-performance  as  a  jury  may  award, 
which  are  collectible  from  his  property  generally.  On  the 
other  hand,  the  vendee  acquires  no  interest  nor  property 
right  whatever ;  he  can  maintain  no  proprietary  nor  posses- 
sory action  for  its  recovery;  his  right  is  a  mere  thing  in 
action  to  recover  compensation  in  damages  for  a  breach 
from  the  vendor,  and  his  duty  is  a  debt, —  an  obligation  to 
pay  the  stipulated  price ;  on  his  death  both  this  right  and  this 
duty  pass  to  his  personal  representatives,  and  not  to  his 
heirs.  In  short,  the  vendee  obtains  at  law  no  real  property 
nor  interest  in  real  property.  The  relations  between  the  twa 
contracting  parties  a.re  wholly  personal.  No  change  is  made 

the  "  quiritary  property "  of  the  early  law,  which  could  only  be  held  by  a 
Roman  citizen,  and  could  only  be  acquired  by  certain  arbitrary  modes,  a» 
by  the  symbolic  process  of  mancipiition  in  case  of  res  mancipi,  or  by  usu- 
caption,  or  by  a  testament  executed  in  strict  compliance  with  the  prescribed 
formalities,  or  by  succession  to  the  agnates  in  case  of  intestacy,  was  the 
exact  analogue  to  our  legal  property  or  legal  estates;  while  the  property 
in  bonis  —  the  "  bonitary  property"  —  giadually  permitted  by  the  pretorian 
legislation,  which  could  be  acquired  in  derogation  of  these  modes,  as,  for 
example,  by  an  ordinary  sale  and  delivery  without  the  symbolism  of  a 
mancipation,  or  by  a  testament  executed  without  a  compliance  with  the 
ancient  forms,  or  by  a  succoHsion  to  tlie  cognates,  etc.,  was  substantially 
identical  with  our  equitable  properly  or  equitable  estates. 


611      REGAKDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    36& 

until,  by  the  execution  and  delivery  of  a  deed  of  conveyance^ 
the  estate  in  the  land  passes  to  the  vendee."  It  is  un- 
necessary to  describe  the  similar  legal  effects  produced  by 
agreements  to  sell  chattels,  sales  of  articles  to  be  acquired 
by  the  vendor  in  the  future,  and  all  other  contracts  which 
are  executory  in  their  nature. 

§  368.  Effect  of  an  Executory  Contract  in  Equity. —  The 
full  significance  of  the  principle  that  equity  regards  and 
treats  as  done  what  ought  to  be  done  throughout  the  wholer 
scope  of  its  effects  upon  equity  jurisprudence  is  disclosed 
in  the  clearest  light  by  the  manner  in  which  equity  deals- 
with  executory  contracts  for  the  sale  of  land  or  chattels,, 
which  presents  such  a  striking  and  complete  contrast  with 
"the  legal  method  above  described.  While  the  legal  rela- 
tions between  the  two  contracting  parties  are  wholly  per- 
sonal,—  things  in  action, —  equity  views  all  these  relations^ 
from  a  very  different  stand-point.  In  some  respects,  and 
for  some  purposes,  the  contract  is  executory  in  equity  as- 
well  as  at  law;  but  so  far  as  the  interest  or  estate  in  the 
land  of  the  two  parties  is  concerned,  it  is  regarded  as  exe- 
cuted, and  as  operating  to  transfer  the  estate  from  the 
vendor  and  to  vest  it  in  the  vendee.  By  the  terms  of  the 
contract  the  land  ought  to  be  conveyed  to  the  vendee,  and  the 
purchase  price  ought  to  be  transferred  to  the  vendor ;  equity 
therefore  regards  these  as  done :  the  vendee  as  having  ac- 
quired the  property  in  the  land,  and  the  vendor  as  having 
acquired  the  property  in  the  price.  The  vendee  is  looked 
upon  and  treated  as  the  owner  of  the  land;  an  equitable 
estate  has  vested  in  him  commensurate  with  that  provided 
for  by  the  contract,  whether  in  fee,  for  life,  or  for  years ;  al- 
though the  vendor  remains  owner  of  the  legal  estate,  he 
holds  it  as  a  trustee  for  the  vendee,  to  whom  all  the  beneficial 
interest  has  passed,  having  a  lien  on  the  land,  even  if  m 
possession  of  the  vendee,  as  security  for  any  unpaid  portion 

(a)  The  text  of  Pomeroy  on  Con-  v.  Williams,  130  Ala.  530,  537,  89 
tracts,  §  314,  which  is  almost  identi-  Am.  St.  Rep.  55,  60,  30  South.  488, 
cal  with  the  above,  ia  quoted  in  Davia       54  L.  R.  A.  749. 


§    368  EQUITY   JURISPRUDENCE.  612 

of  the  purchase-money.*  *  The  consequences  of  this  doctrine 
are  all  followed  out.  As  the  vendee  has  acquired  the  full 
equitable  estate, —  although  still  wanting  the  confirmation 
of  the  legal  title  for  purposes  of  security  against  third 
persons, —  he  may  convey  or  encumber  it ;  may  devise  it  by 
will;  on  his  death  intestate,  it  descends  to  his  heirs,  and 
not  to  his  administrators;*'  in  this  country,  his  wife  is  en- 
titled to  dower  in  it;  a  specific  performance  is,  after  his 
death,  enforced  by  his  heirs ;  in  short,  all  the  incidents  of  a 
real  ownership  belong  to  it.  As  the  vendor's  legal  estate 
is  held  by  him  on  a  naked  trust  for  the  vendee,  this  trust, 
impressed  upon  the  land,  follows  it  in  the  hands  of  other 
persons  who  may  succeed  to  his  legal  title, —  his  heirs  and 

1  It  is  a  great  mistake,  opposed  to  the  fundamental  notions  of  equity,  to 
suppose  that  the  equity  maxim  does  not  operate,  and  the  vendee  does  not 
become  equitable  o\vner  until  and  as  far  as  he  has  actually  paid  the  stipu- 
lated price.  This  erroneous  view  has  sometimes  been  suggested,  and  some- 
times even  held,  in  a  few  American  decisions;  but  it  shows  a  misconcep- 
tion of  the  whole  equitable  theory.  See,  merely  as  an  example,  some  of 
the  dicta  in  Douglas  Co.  v.  Union  Pac.  R.  R.,  5  Kan.  615.  In  truth,  the 
vendee  becomes  equitable  owner  of  the  land,  and  the  vendor  equitable  owner 
of  the  purchase-money,  at  once,  upon  the  execution  and  delivery  of  the 
contract,  even  before  any  portion  of  the  price  is  paid.^  It  is  true  that 
the  vendee's  equitable  estate  is  encumbered  or  charged  with  a  lien  as 
Becurity  for  the  unpaid  price,  and  he,  therefore,  may,  by  the  enforcement 
of  this  lien  upon  his  final  default  in  making  payment,  lose  his  whole  estate, 
in  the  same  manner  as  a  mortgagor  may  lose  his  interest  by  a  foreclosure. 
But  this  lien  of  the  vendor  is  not  inconsistent  with  the  vendee's  equitable 
estate,  any  more  than  the  equitable  lien  of  an  ordinary  mortgage  is  incon- 
sistent with  the  mortgagor's  legal  estate.  See  cases  cited  in  note  at  end  of 
this  paragraph. 

(a)  The  text  is  quoted  in  Marvin  Rep.   55,   60,   61,   30  South.   488,   54 

V.   Stimpson,   23    Colo.    174,   46   Pac.  L.  R.  A.  749. 

673 ;  cited,  Peay  v.  Seigler,  48  S.  C.  (1»)  Quoted    in    Wiseman    v.    Beck- 

496,  59  Am.  St.  Rep.  731,  26  S.  E.  with,  90  Ind.  185,  190,  holding  that 

885   (vendor's  lien)  ;  Savings  &  Loan  the  equitable  estate  of  the  vendee  is 

Soc.  V.  Davidson,  97  Fed.  096,  38  C.  vested  in  him   by  the  contract,  and 

C.  A.  365.     The  text  of  Pomeroy  on  cannot    be    impaired    by    subsequent 

Contracts,    §    314,    which    is    almost  legislation.     See  also  Young  v.  Guy, 

identical    with    the   above,    is    quoted  87  N.  Y.  462. 

with  approval  in  Davis  v.  Williams,  (c)  The  text  is  quoted  in  Marvin 

no  Ala.   530,   537,   538,   89   Am.   St.  v.  Stimpson,  23  Colo.  174,  46  Pac.  673. 


613      EEGAEDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    368 

his  grantees,  who  take  with  notice  of  the  vendee's  equi- 
table right.  In  other  words,  the  vendee's  equitable  estate 
avails  against  the  vendor's  heirs,  devisees,  and  other  volun- 
tary assignees,  and  his  grantees  with  notice  f  it  is  only  when 
the  vendor  has  conveyed  the  land  to  a  third  person  who 
is  a  bona  fide  purchaser  for  value  without  notice  that  other 
equitable  principles  come  into  play,  and  cut  off  the  vendee's 
equitable  estate.^  It  follows  also,  as  a  necessary  conse- 
quence, that  the  vendee  is  entitled  to  any  improvement  or 
increment  in  the  value  of  the  land  after  the  conclusion  of 
the  contract,  and  must  himself  bear  any  and  all  accidental 
injuries,  losses,  or  wrongs  done  to  the  soil  by  the  operations 
of  nature,  or  by  tortious  third  persons  not  acting  under  the 
vendor.  The  equitable  interest  of  the  vendor  is  correlative 
with  that  of  the  vendee;  his  beneficial  interest  in  the  land 
is  gone,  and  only  the  naked  legal  title  remains,  which  he 
holds  in  trust  for  the  vendee,  accompanied,  however,  by  a 
lien  upon  the  land  as  security  when  any  of  the  purchase 
price  remains  unpaid.  This  lien,  like  every  other  equitable 
lien,  is  not  an  interest  in  the  land,  is  neither  a  jus  ad  rem  nor 
a  jus  in  re,  but  merely  an  encumbrance.  The  vendor  is  re- 
garded as  owner  of  the  purchase  price,  and  the  vendee,, 
before  actual  payment,  is  simply  a  trustee  of  the  purchase- 
money  for  him.  Equity  carries  out  this  doctrine  to  its  con- 
sequences. Although  the  land  should  remain  in  the  posses- 
sion and  in  the  legal  ownership  of  the  vendor,  yet  equity,  in 
administering  his  whole  property  and  assets,  looks  not  upon 
the  land  as  land, —  for  that  has  gone  to  the  vendee, —  but 

(d)  The  text  is  cited  in  Walker  v.  is  the  proper  party  defendant  to  a 
Goldsmith,  14  Oreg.  125,  12  Pac.  537,  suit  for  specific  performance  by  the 
dissenting  opinion,  where  it  is  urged  vendee.  The  text  is  cited  in  White 
that  the  vendee's  estate  should  not  v.  Patterson,  139  Pa.  St.  429,  21  Atl. 
prevail  against  the  lis  pendens  of  a  360;  Cross  v.  Bean,  83  Me.  62,  21 
subsequent  suit  against  the  vendor.  Atl.  752;  to  the  effect  that  the  ven- 
On  this  question  see  post,  §  637,  and  dee's  estate  prevails  against  a  pur- 
notes.  The  text  is  cited  in  Wood-  chaser  from  the  vendor  with  notice, 
bury  V.  Gardner,  77  Me.  68,  75,  to  the  (e)  The  text  is  cited  in  Coleman 
effect  that  the  vendor's  sole   devisee  v.  Dunton,   (Me.),  58  Atl.  430. 


%    368  EQUITY   JURISPRUDENCE.  614 

looks  upon  the  money  wliicli  has  taken  the  place  of  the  land; 
that  is,  so  far  as  the  land  is  a  representative  of  the  vendor's 
property,  so  far  as  it  is  an  element  in  his  total  assets,  equity 
treats  it  as  money,  as  though  the  exchange  had  actually  been 
made,  and  the  vendor  had  received  the  money  and  trans- 
ferred the  land.  Although  the  legal  title  to  the  land  would 
still  descend  to  the  vendor's  heirs  upon  his  death,  still  when 
the  vendee  afterwards  completes  the  contract,  takes  a  con- 
veyance of  the  legal  title  from  the  heirs,  and  pays  the  price, 
the  money,  being  all  the  time  an  element  of  the  vendor's 
assets,  and  being,  therefore,  all  the  time  a  part  of  his  per- 
sonal and  not  of  his  real  property,  goes  to  his  adminis- 
trators or  executors,  to  be  by  them  administered  upon  with 
the  rest  of  his  personal  assets,  and  does  not  go  to  the 
heirs.^ 

2  The  following  are  a  few  out  of  the  very  many  authorities  by  which  all 
•the  foregoing  propositions  of  the  text  are  fully  sustained:  Farrar  v.  Win- 
terton,  5  Beav.  1,  8,  per  Lord  Langdale,  M.  R.  A  testatrix  made  a  will 
devising  certain  real  estate.  After  making  the  will  she  entered  into  a 
contract  to  sell  the  same  land.  The  contract  was  not  fully  carried  into  ef- 
fect by  conveyance  and  pajTnent  of  the  price  until  after  her  death,  and  the 
-only  question  presented  by  the  case  was,  whether  the  purchase-money  thus 
paid  belonged  to  the  executors  as  part  of  the  general  assets  of  her  estate, 
•or  whether  it  belonged  to  the  devisees.  Lord  Langdale  said  (p.  8):  "The 
question  whether  the  devisees  can  have  any  interest  in  that  part  of  the  pur- 
<;hase-money  which  was  unpaid  depends  on  the  rights  and  interests  of  the 
testatrix  at  the  time  of  her  death.  She  had  contracted  to  sell  her  beneficial 
interest.  In  equity,  she  had  alienated  the  land,  and  instead  of  her  beneficial 
interest  in  the  land,  she  had  acquired  a  title  to  the  purchase-money.  What 
was  really  hers  in  right  and  equity  was  not  the  land,  but  the  money,  of  which 
alone  she  had  the  right  to  dispose;  and  though  she  had  a  lien  upon  the  land, 
and  might  have  refused  to  convey  until  the  money  was  paid,  yet  that  lien  was 
a  mere  security,  in  or  to  which  she  had  no  right  or  interest  except  for  the 
purpose  of  enabling  her  to  obtain  the  payment  of  the  money.  The  beneficial 
interest  in  tlie  land  which  she  had  devised  was  not  at  her  disposition,  but  was 
by  her  act  wholly  vested  in  anotlier  at  the  time  of  her  death."  This  opinion 
is  a  very  clear  and  accurate  statement  of  the  doctrine,  and  the  passage  which 
I  have  italicized  shows  how  erroneous  is  the  notion,  advanced  by  way  of 
dictum  or  as  ground  of  decision  in  a  few  American  cases,  that  the  equitable 
estate  of  the  vendee  only  arises  when  and  as  far  as  he  makes  actual  payment 
of  the  purchase  price:  Haugliwout  v.  Murphy,  22  N.  J.  Eq.  531.  "  In  equity, 
■  upon  an  agreement  for  the  sale  of  lands,  the  contract  is  regarded  for  most 
.purpoHfs  as  if  specifically  executed.  The  purciniser  becomes  the  equitable 
kOWIH-T  of  the  lands,  and  the  veiulor  of  the  purcliase-moncy.     After  the  contract. 


r 


615      REGAKDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    3G9 

§  369.  Sources  of  All  Equitable  Property. —  In  the  forego- 
ing description  is  shown  how,  in  one  particular  manner,  by 
the  operation  of  the  fundamental  principle,  the  equitable 
estate  in  land,  the  beneficial  property,  the  real  ownership, 

the  vendor  ia  the  trustee  of  the  legal  estate  for  the  vendee:  Crawford  v. 
Bertholf,  1  N.  J.  Eq.  460;  Hoagland  v.  Latourette,  2  N.  J.  Eq.  254;  Huffman 
V.  Hummer,  17  N.  J.  Eq.  264;  King  v.  Ruckman,  21  N.  J.  Eq.  599.  Before  the 
contract  is  executed  by  conveyance,  the  lands  are  devisable  by  the  vendee,  and 
descendible  to  his  heirs  as  real  estate;  and  the  personal  representatives  of 
the  vendor  are  entitled  to  the  purchase-money:  Story's  Eq.  Jur.,  §§  789,  790, 
1212,  1213.  If  the  vendor  should  again  sell  the  estate,  of  which,  by  the  first 
contract,  he  is  only  seised  in  trust,  he  will  be  considered  as  selling  it  for  the 
benefit  of  the  person  for  whom,  by  the  first  contract,  he  became  a  trustee,  and 
therefore  liable  to  account;  or  the  second  purchaser,  if  he  had  notice  at  the 
time  of  his  purchase  of  the  previous  contract,  will  be  compelled  to  convey  the 
property  to  the  first  purchaser:  Hoagland  v.  Latourette,  2  N.  J.  Eq.  254; 
Downing  v.  Risley,  15  N.  J.  Eq.  94.  A  purchaser  from  a  trustee,  with 
notice  of  the  trust,  stands  in  the  place  of  his  vendor,  and  is  as  much  a  trus- 
tee as  he  was:  1  Eq.  Cas.  Abr.  384;  Story  v.  Lord  Windsor,  2  Atk.  631. 
The  cestui  que  trust  may  follow  the  trust  property  in  the  hands  of  the  pur- 
chaser, or  may  resort  to  the  purchase-money  as  a  substitute  fund:  Murray 
V.  Bailou,  1  Johns.  Ch.  5G6,  581.  It  is  upon  the  principle  of  the  transmis- 
sion by  the  contract  of  an  actual  equitable  estate,  and  the  impressing  of  a 
trust  upon  the  legal  estate  for  the  benefit  of  the  vendee,  that  the  doctrine  of 
the  specific  performance  of  contracts  for  the  sale  and  conveyance  of  land 
mainly  depends."  See  also  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  1  Lead. 
Cas.  Eq.,  4th  Am.  ed.,  1118,  1123,  1157;  Yates  v.  Compton,  2  P.  Wms.  308; 
Green  v.  Smith,  1  Atk.  572,  573;  Trelawny  v.  Booth,  2  Atk.  307;  Pollexfen 
v.  Moore,  3  Atk.  273;  Mackreth  v.  Symmons,  15  Ves.  329,  336;  Rose  v. 
Cunynghame,  11  Ves.  554;  Kirkman  v.  Miles,  13  Ves.  338;  Peters  v.  Beverly, 
10  Pet.  532,  533;  Taylor  v.  Benham,  5  How.  234;  Champion  v.  Brown,  6 
Johns.  Ch.  403,  10  Am.  Dec.  343;  Wood  v.  Cone,  7  Paige,  472;  Wood  v. 
Keyes,  8  Paige,  365;  Worrall  v.  Munn,  38  N.  Y.  139;  Thompson  v.  Smith, 
63  N.  Y.  301,  303;  Seaman  v.  Van  Rensselaer,  10  Barb.  86;  Kerr  v.  Day,  14 
Pa.  St.  112,  53  Am.  Dec.  526;  Robb  v.  Mann,  1  Jones,  300,  51  Am.  Dec.  551; 
Richter  v.  Selin,  8  Serg.  &  R.  425,  440;  Brewer  v.  Herbert,  30  Md.  301,  96 
Am.  Dec.  582;  Lindsay  v.  Pleasants,  4  Ired.  Eq.  321;  Phillips  v,  Sylvester, 
L.  R.  8  Ch.  173,  176,  per  Lord  Selborne.* 

it)  That  the  interest  of  the  vendor  v.  Tower,  UN.  Dak.  556,  93  N.  W. 
in  the  purchase-money  passes  to  his  862,  it  was  held  that  when  the  exec- 
personal  representative,  who  is  the  utors  have  canceled  the  contract  of 
proper  plaintiff  in  a  suit  for  specific  sale  for  default  of  the  purchaser,  and 
performance,  see  Solt  v.  Anderson  thus  regained  title,  they  may  sell  and 
(Nebr.),  93  N.  W.  205;  Bender  v.  convey  the  land  and  account  to  the 
Luekenback,  162  Pa.  St.  18,  29  Atl.  court  of  their  appointment  for  the 
295,  296;  Williams  v.  Haddock,  145  proceeds  as  personalty,  and  the  title 
N.  Y.  144,  39  N.  E.  825.     In  Clapp  so  conveyed  is  good  as  against  the 


§  369 


EQUITY   JUEISPEUDENCE. 


616 


arises,  although  no  one  of  the  acts  or  events  has  taken  place 
which  the  common  law  so  imperatively  demands  as  a  pre- 
requisite to  the  existence  of  ownership  or  property.  Thi& 
instance  is  given  simply  as  an  example.  An  analysis  of  all 
the  different  equitable  estates,  property,  and  interests  anal- 
ogous to  property,  either  real  or  personal,  known  to  th& 
equity  jurisprudence  will  disclose  the  fact  that  nearly  all, 
if  not  absolutely  all,  arise  in  the  same  general  manner,  by 
the  operation  upon  the  particular  circumstances  of  the  same 
fundamental  principle,  and  with  the  same  general  results.* 
Thus  an  assignment  or  conveyance  of  that  peculiar  interest 
in  land  called  a  ' '  possibility  "is  at  the  common  law  a  mere 
nullity,  so  far  at  least  as  it  attempted  to  create  or  transfer 
any  ownership.  At  the  time  when  the  instrument  is  exe- 
cuted there  is  no  present,  certain,  vested  property  right  in 
the  assignor  upon  which  its  granting  language  can  attach; 
and  if  at  some  future  time  the  contingency  happens,  the 


heirs  of  the  vendor  claiming  title 
by  succession.  The  equitable  rights 
of  the  next  of  kin  of  the  vendor  are 
not  defeated  where  the  vendee,  by  his 
laches,  after  the  death  of  the  vendor, 
loses  his  right  to  specific  performance, 
provided  the  contract  was  enforceable 
in  equity  at  the  death  of  the  vendor; 
Keep  V.  Miller,  42  N.  J.  Eq.  100,  6 
Atl.  495. 

The  equitable  estate  of  the  vendee 
will  pass  by  his  deed  purporting  to 
convey  the  land.  Wilson  v.  Fairchild, 
45  Minn.  203,  47  N.  W.  642. 

Since  the  vendee  is  a  trustee  of  the 
purchase-money,  the  statute  of  limi- 
tations does  not  run  against  an  ac- 
tion to  enforce  the  vendor's  lien  until 
the  trust  relationship  is  terminated. 
Williams  v.  Young  (Ark.),  71  S.  W. 
fiCO. 

The  assertion  by  a  tenant  of  the 
riglit  to  have  a  contract  of  purchase 
Bpecifically  enforced  against  his  land- 
lord,  depending  a«  it  does   upon   the 


existence  of  the  vendee's  equitable 
estate,  involves  a  denial  of  the  land- 
lord's title,  within  the  meaning  of 
the  rule  by  which  the  tenant  is  es- 
topped to  deny  such  title.  Davis  v. 
Williams,  130  Ala.  530,  30  South.  488, 
89  Am.  St.  Rep.  55,  54  L.  R.  A.  749. 

That  the  purchaser  is  entitled  to  a 
homestead  in  the  land,  subject  to  the 
vendor's  lien  for  the  unpaid  purchase- 
money,  see  Dortch  v.  Benton,  98  N.  C. 
190,  2  Am.  St.  Rep.  331,  3  S.  E.  638. 

See,  in  general,  on  the  subject  of 
this  paragraph,  Marvin  v.  Stimpson, 
23  Colo.  174,  46  Pac.  673,  quoting  the 
text;  Whittier  v.  Stege,  61  Cal.  238. 
For  further  treatment  of  the  sub- 
ject, and  special  rules  arising  from 
the  relationship  of  vendor  and  vendee 
in  equity,  see  post,  §§  1161,  1163, 
1260,  1201;  Pom.  Eq.  Rem.,  chapter 
on  Specific  Performances. 

(a)  The  text  is  cited  in  Sourwine  v. 
Supreme  Lodge,  12  Ind.  App.  447,  54 
Am.  St.  Rep.  532,  40  N.  E.  646. 


617      REGARDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    369 

possibility  changes  into  a  certainty,  and  a  property  right 
becomes  vested  in  the  assignor,  the  arbitrary  and  technical 
rules  of  the  common  law  concerning  conveyances  of  real 
estate  did  not  allow  the  words  of  assignment  to  act  upon  this 
newly  arisen  and  vested  interest  so  as  to  transfer  it  to  the 
assignee.  The  effect  of  such  a  transaction  in  equity  is 
wholly  different.  Although  when  the  assignment  is  exe- 
cuted there  is  no  present  certain  right  of  property  in  the 
assignor  which  can  be  transferred,  yet  in  the  view  of  equity 
the  instrument  operates  at  least  as  an  executory  agreement 
on  the  part  of  the  assignor,  and  creates  a  present  obligation 
resting  upon  him  with  reference  to  the  land,  which  obliga- 
tion, though  now  contingent,  may  in  future  become  absolute. 
If,  therefore,  at  a  subsequent  time  the  contingency  happens, 
and  a  certain  present  property  thereupon  vests  in  the  as- 
signor, the  obligation,  now  become  absolute,  at  once  attaches 
to  it.  By  virtue  of  that  obligation  this  property  or  estate 
of  the  assignor  ought  to  be  conveyed  to  the  assignee  by  an 
eflScient  legal  assurance;  and  equity,  regarding  what  ought 
to  be  done  as  done,  treats  the  property  as  transferred,  and 
the  assignee  as  vested  with  the  complete  beneficial  owner- 
ship. In  this  manner  equity,  in  pursuance  of  the  funda- 
mental principle  under  discussion,  gives  full  effect  to  an  as- 
signment or  conveyance  of  a  "  possibility, ' '  and  makes  it  the 
source  of  an  equitable  property  in  land.  Again,  a  sale  of  a 
chattel  not  yet  in  existence,  or  not  yet  in  the  possession  of  the 
vendor,  but  to  be  acquired  in  future,  passes  no  property  in 
the  thing  to  the  buyer  at  law,  even  when  it  subsequently 
comes  into  the  seller's  ownership  and  possession.  Such 
contract  gives  to  the  buyer  a  right  of  action  for  damges,  but 
no  property;  he  can  maintain  an  action  of  assumpsit,  but 
not  replevin,  or  trover,  or  trespass.^  But  as  such  a  con- 
tract, although  using  language  in  prcesenti,  is,  in  effect,  an 
executory  agreement,  and  creates  a  definite  obligation  upon 

1 1  am  stating,  of  course,  the  general  rule,  and  need  not  describe  the 
special  excepted  case  of  things  having  a  "  potential  existence,"  such  as  an 
expected  crop,  etc. 


§    370  EQUITY   JURISPRUDENCE.  618 

the  vendor,  equity,  upon  tlie  same  principle  and  in  tlie  same 
manner  as  last  above  explained,  regards  it  as  an  assign- 
ment; and  when  the  thing  comes  into  existence,  or  into  the 
ownership  of  the  seller,  the  real,  beneficial  property  in  it 
is  at  once  transferred  to  and  vested  in  the  buyer,  and  he 
is  the  equitable  owner.  It  is  in  consequence  of  the  same 
principle  that  an  assignment  of  a  thing  in  action,  com- 
pletely nugatory  at  the  common  law  as  a  transfer,  and 
indeed  opposed  to  the  ancient  theories  of  the  law,  is  re- 
garded in  equity  as  clothing  the  assignee  with  all  the  rights 
of  his  assignor.  These  illustrations  have  all  been  taken 
from  express  contracts.  The  principle  also  extends  to 
cases  where  the  legal  relations  arise  from  conveyances  inter 
vivos,  or  wills  in  which  one  of  the  parties  is  a  volunteer, 
■and  even  to  transactions  in  which  the  legal  relations  arise 
from  no  such  definite  cause,  but  are  merely  implied  from 
the  prior  conduct  of  the  parties.  In  all  express  active 
trusts  to  convey  the  corpus  of  the  trust  property  directly 
to  the  cestui  que  trust,  and  in  all  express  passive  trusts  to 
hold  the  land  for  the  use  of  the  cestui  que  trust,  created 
either  by  deed  or  by  will,  an  equity  exists  between  the 
beneficiary  and  the  trustee,  an  obligation  rests  upon  the 
latter,  and  this  equity  is  treated  as  worked  out,  the  obli- 
gation as  performed,  and  the  beneficiary  as  clothed  with 
an  equitable  estate,  depending  in  kind,  quality,  and  degree 
upon  the  special  provisions  of  the  instrument.  Finally, 
in  trusts  arising  by  operation  of  law,  implied,  construct- 
ive, and  resulting  trusts,  the  equity  subsisting  between 
the  cestui  que  trust  and  the  holder  of  the  legal  title,  and 
the  obligation  resting  upon  the  latter,  are  treated  as  though 
worked  out,  by  regarding  the  beneficiary  as  vested  with  an 
equitable  but  no  less  real  ownership. 

§  370.  The  Equitable  Estates  Derived  from  This  Principle. 
—  Having  thus  examined  the  meaning  of  the  grand  princi- 
ple,—  equity  regards  that  as  done  which  ought  to  be  done, — 
and  explained  the  rationale  of  its  operation  upon  equity  ju- 
risprudence in  giving  rise  to  various  kinds  of  equitable  prop- 


619      KEGARDS   THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    371 

erty  and  rights  analogous  to  property,  I  shall  finish  the  dis- 
cussion by  very  briefly  enumerating  the  most  important  of 
these  equitable  estates,  interests,  and  property  rights  which 
are  the  immediate  effects  of  the  principle.  As  has  already 
been  shown,  the  maxim  applies  whenever  an  equity  exists 
between  two  determinate  parties  with  reference  to  some 
subject-matter;  that  is,  an  obligation  rests  upon  one,  and  a 
corresponding  right  is  held  bj  another.*  Such  a  right  and 
duty  may  arise  from  a  contract  between  the  parties,  and 
by  the  doctrines  of  equity  a  contract  must  be  made  upon 
an  actual  valuable  consideration^  in  order  that  any  equitable 
right  and  obligation  may  be  created  by  it;^  or  from  the 
dispositions  contained  in  a  deed  or  will,  where  the  party 
clothed  with  the  right  is  a  volunteer;  or  from  the  conduct 
and  relations  of  the  parties,  where  the  equity  neither  grows 
out  of  any  express  contract,  conveyance,  or  will,  as  in  trusts 
arising  solely  by  operation  of  law.  The  various  estates 
and  interests  resulting  from  the  maxim  might  therefore 
be  arranged  in  classes  according  to  this  threefold  division; 
but  it  will  be  much  more  convenient  to  state  them  under 
their  accepted  names  and  titles  as  separate  species  of  equi- 
table property. 

§  371.  Conversion. —  One  of  the  most  direct  and  evident 
results  of  the  principle  is  the  equitable  property  which 
arises  from  the  doctrine  of  conversion,  —  when  real  estate 
is  treated  by  equity  as  personal  property,  or  personal  estate 
as  real  property ;  land  as  money,  or  money  as  land,  — 
*'  nothing  is  better  established  than  this  principle,  that 

lA  seal  alone  is  not  enough  to  show  a  consideration  in  equity:  Jefferya 
V.  Jefferys,  Craig  &  P.  138;  Hervey  v.  Audland,  14  Sim.  531;  Meek  v.  Ket- 
tlewell,  1  Phill.  Ch.  342,  1  Hare,  464;  Ord  v.  Johnston,  1  Jur.,  N.  S.,  1063; 
Wycherley  v.  Wycherley,  2  Eden,  177;  Estate  of  Webb,  49  Cal.  541,  545:, 
Minturn  v.  Seymour,  4  Johns.  Ch.  497;  Burling  v.  King,  66  Barb.  633; 
Shepherd  v.  Shepherd,  1  Md.  Ch.  244;  Vasser  v.  Vasser,  23  Miss.  378;  Keke- 
wich  V.  Manning,  1  De  Gex,  M.  &  G.  176;  Jones  v.  Lock,  L.  R.  1  Ch.  25; 
Wason  V.  Colburn,  99  Mass.  342;  Pomeroy  on  Specific  Performance,  §  57, 
notes  2,  3. 

(a)  The  text  is  cited  in  Sourwine  v.  Supreme  Lodge,  12  Ind.  App.  447, 
64  Am.  St.  Rep.  532,  40  N.  E.  646. 


§    371  EQUITY   JURISPRUDENCE.  620 

money  directed  to  be  employed  in  the  purchase  of  land,  and 
land  directed  to  be  sold  and  turned  into  money,  are  to  be 
considered  as  that  species  of  property  into  which  they  are 
directed  to  be  converted;  and  this  in  whatever  manner  the 
direction  is  given,  whether  by  will,  by  way  of  contract,  mar- 
riage articles,  settlement,  or  otherwise,  or  whether  the 
money  is  actually  deposited,  or  only  covenanted  to  be  paid ; 
whether  the  land  is  actually  conveyed,  or  only  agreed  to  be 
conveyed;  the  owner  of  the  fund  or  the  contracting  parties 
may  make  land  money  or  money  land. "  ^  A  conversion 
may  thus  take  place  where,  by  a  will,  a  deed,  or  family  set- 
tlement, land  is  actually  devised  or  conveyed,  or  money 
or  securities  are  actually  assigned  to  trustees,  with  direc- 
tions in  the  one  case  to  sell  the  land,  and  pay  over  the  pro- 
ceeds to  the  beneficiary,  and  in  the  other  to  invest  the  fund 
in  the  purchase  of  the  land  to  be  then  conveyed  to  him ;  or 
it  may  in  like  manner  take  place  where,  by  marriage  arti- 
cles or  other  executory  agreement,  land  is  covenanted  to 
be  conveyed,  or  money  is  covenented  to  be  assigned,  in  like 
manner  and  for  like  purposes.  The  effect  of  the  conver- 
sion is  a  direct  consequence  of  the  principle  in  question. 
Personal  estate  becomes,  to  all  intents  and  purposes,  in 
the  view  of  equity,  real,  and  real  estate  personal.  Money 
directed  to  be  invested  in  land  descends  to  the  heir  of  the 
original  beneficiary,  or  passes  under  a  general  description 
of  real  property  in  his  will,  while  land  directed  to  be  con- 
verted into  money  goes  to  his  personal  representatives,  or 
is  included  in  a  residuary  bequest  of  his  *'  personal  prop- 
erty." These  are  some  of  the  incidents  of  a  conversion, 
and  are  sufficient  at  present  to  illustrate  its  nature  and 
results.^ 

1  Per  Sir  Thomas  Sevvell,  M.  R.,  in  Fletcher  v,  Ashburner,  1  Brown  Ch. 
497,  1  Lead.  Cas.  Eq.,  4th  Am,  ed.,  1118,  1120. 

2  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  1  Lead.  Cas.  Eq.,  4th  Am.  ed., 
1118,  1123,  1157;  Kettleby  v.  Atwood,  1  Vern.  298;  Crabtree  v.  Bramble, 
3  Atk.  080;  Babington  v.  Greenwood,  1  P.  Wms.  532;  Lechmere  v.  Earl 
of  Carlisle,  3  P.  Wms.  211;  Guidot  v.  Guidot,  3  Atk.  254;  Sweetapple  v. 
Bindon,  2  Vern.  536;  Wholdale  v.  Partrid<,'e,  5  Ves.  390,  8  Ves.  227;  Stead 
T.    Newdigate,    2    Mer.    521;    Elliott    v.    Fisher,    12    Sim.    505;    Harcourt    v. 


621  REGAKDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.  §§  372,  373 

§  372.  Contracts  for  the  Purchase  and  Sale  of  Lands. — 
Another  immediate  and  evident  consequence  of  the  prin- 
<?iple  is  the  equitable  property  created  by  mere  agreements 
to  purchase  and  sell  lands.  If  the  contract  is  made  upon 
an  actual  valuable  consideration,  and  complies  in  other 
respects  with  the  requisites  prescribed  by  equity,  then,  as 
soon  as  it  is  executed  and  delivered,  the  vendee  acquires 
an  equitable  estate  in  the  land  subject  simply  to  a  lien  in 
favor  of  the  seller  as  security  for  payment  of  the  price,* 
while  the  vendor  becomes  equitable  owner  of  the  pur- 
chase-money. There  is  in  this  case,  as  in  the  last,  an 
equitable  conversion;  the  vendee's  interest  is  at  once  con- 
verted into  real  property  with  all  its  features  and  incidents, 
while  the  vendor's  interest  is,  to  the  same  extent,  personal 
•estate.^ 

§  373.  Assignments  of  Possibilities;  Sales  of  Chattels  to  be 
Acquired  in  the  Future;  Assignments  of  Things  in  Action; 
Equitable  Assignments  of  Moneys ;  and  Equitable  Liens. —  The 
operation  of  the  grand  principle  that  equity  regards  that 

Seymour,  2  Sim.,  N.  S.,  45;  In  re  Pedder,  5  De  Gex,  M.  &  G.  890;  Ashby  v. 
Palmer,  1  Mer.  296;  Craig  v.  Leslie,  3  Wheat.  563,  577,  and  cases  cited; 
Dunscorab  v.  Dunscomb,  1  Johns.  Ch.  508,  7  Am,  Dec.  504;  Lorillard  v. 
Coster,  5  Paige,  173,  218;  Gott  v.  Cook,  7  Paige,  523,  534;  Kane  v.  Gott, 
24  Wend.  641,  660,  35  Am.  Dec.  641;  Allison  v.  Wilson's  Ex'r,  13  Serg.  &  R. 
330,  332;  Morrow  v.  Brenizir,  2  Eawle,  185,  189;  Hurtt  v.  Fisher,  1  Har. 
&  G.  88,  96;  Leadenham  v.  Nicholson,  1  Har.  &  G.  267,  277;  Siter  v. 
McClanachan,  2  Gratt.  280;  Pratt  v.  Taliaferro,  3  Leigh,  419,  421;  Tazewell 
V.  Smith's  Adm'rs,  1  Rand.  313,  320,  10  Am.  Dec.  533;  Commonwealth  v. 
Martin's  Ex'r,  5  Munf.  117,  121;  Smith  v.  McCrary,  3  Ired.  Eq.  204,  207; 
Peter  v.  Beverly,  10  Pet.  534,  563;  Taylor  v.  Benham,  5  How.  234,  209. 

1  Fletcher  v.  Ashburner,  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1118,  1123,  1157, 
in  notes;  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1  Eden,  177;  Harford  v. 
Purrier,  1  Madd.  532;  Paine  v.  Meller,  6  Ves.  349;  Rawlins  v.  Burgis,  2  Yes. 
&  B.  387 ;  Revell  v.  Hussey,  2  Ball  &  B.  287 ;  Hampson  v.  Edelen,  2  Har.  &  J. 
€6,  3  Am.  Dec.  530;  Siter's  Appeal,  26  Pa.  St.  180;  Jackson  v.  Small,  34  Ind. 
241;  Lewis  v.  Smith,  9  N.  Y.  502,  510,  61  Am.  Dec.  706;  Moyer  v.  Hinman, 
13  N.  Y.  180;  Thomson  v.  Smith,  63  N.  Y.  301,  303;  jMoore  v.  Burrows,  34 
Barb.  173;  Adams  v.  Green,  34  Barb.  176;  Schroppel  v.  Hopper,  40  Barb.  425; 
and  see  ante,  §  368,  note. 

(a)  The    text    is    cited,    as    to   the       S.    E.    885;    Schenck    v.    Wicks,    23 
vendor's  lien,  in  Peay  v.  Seigler,  48       Utah,  576,  65  Pac.  732. 
S.   C.  496,  59  Am.   St.  Rep.   731,  26 


§    373  EQUITY    JURISPRUDENCE.  622 

as  done  which  in  good  conscience  ought  to  be  done  is  per- 
haps less  immediate  and  evident  in  producing  these  species 
of  equitable  property,  or  interest,  but  is  no  less  real  and 
certain.  In  all  these  instances  an  equity  exists  between 
the  two  parties,  growing  either  out  of  an  assignment  which 
at  law  creates  or  transfers  no  property  right,  either  present 
or  future,  in  the  subject-matter,  or  out  of  an  executory  con- 
tract which  at  law  only  creates  a  personal  demand,  —  a 
mere  right  of  action,  —  and  equity,  laying  hold  of  the  obli- 
gation thus  assumed  by  or  imposed  upon  one  of  the  parties, 
transforms  it,  so  to  speak,  upon  the  happening  of  the  con- 
tingent event  contemplated,  into  the  real,  beneficial,  equi- 
table ownership,  property,  or  interest,  of  whatever  nature 
and  extent,  absolute  or  qualified,  it  may  be,  according  to  the 
terms  of  the  instrument.  Thus  the  assignee  of  a  possibil- 
ity becomes  equitable  owner  of  the  estate  when  the  event 
takes  place;  the  vendee  of  chattels  to  be  acquired  becomes 
their  equitable  owner;  the  equitable  assignee  of  a  fund  be- 
comes the  real  owner  of  the  money;  and  from  a  mortgage 
or  other  transfer  inoperative  as  such  at  law,  or  from  the 
mere  executory  stipulations  of  an  agreement,  complete 
equitable  liens  upon  specific  lands,  chattels,  or  funds  are 
created.^  * 

1  For  authorities  illustrating  each  of  these  species,  see  ante,  §  369,  and 
notes  thereunder.  In  describing  equitable  liens,  Currey,  C.  J.,  in  Daggett 
V.  Eankin,  31  Cal.  321,  320,  used  the  following  language:  "The  doctrine 
seems  to  be  well  established  that  an  agreement  in  writing  to  give  a  mort- 
gage, or  a  mortgage  defectively  executed,  or  an  imperfect  attempt  to  create 
a  mortgage,  or  to  appropriate  specific  property  to  the  discharge  of  a  par- 
ticular debt,  will  create  a  mortgage  in  equity,  or  a  specific  [equitable]  lien 
on  the  property  intended  to  be  mortgaged.  The  maxim  of  equity  upon 
which  this  doctrine  rests  is,  that  equity  looks  upon  things  agreed  to  be  done 
as  actually  performed;  the  true  meaning  of  which  is,  that  equity  will  treat 
the  subject-matter,  as  to  collateral  consequences  and  incidents,  in  the  same 

(a)  As  to  equitable  liens,  see  post,  46  Atl.  1101;  National  Bank  of  De- 
§  1235;  Howard  v.  Dclgado  County,  posit  v.  Rogers,  160  N.  Y.  380,  59 
121  Fed.  26;  Lynch  v.  Moser,  72  N.  E.  922.  As  to  equitable  assign- 
Conn.  714,  46  Atl.  153  (agreement  ment  of  a  fund,  see  post,  §§  1280- 
to  give  a  mortgage)  ;  Shipman  v.  1284;  Preston  v.  Russell,  71  Vt.  161, 
Lord,  58  N.  J.  Eq.  380,  44  Atl.  215,  44  Atl.   116. 


623      REG.AJIDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    374 

§  374.  Express  Trusts.* —  In  every  particular  instance  of 
that  vast  section  of  peculiar  ownerships  to  which  the  gen- 
eric name  of  *'  Trusts  "  is  given,  where  the  legal  title  to 
the  subject-matter  is  vested  in  one  person,  and  the  equitable 
title  is  held  by  another,  this  equitable  property  is  the  direct 
and  plain  effect  of  the  principle  which  we  are  discussing. 
The  truth  of  this  statement  is  undeniable  in  all  those  cases 
of  express  trusts  which  thus  divide  the  total  ownership 
into  the  legal  estate  of  the  trustee,  and  the  equitable  estate 
of  the  cestui  que  trust.  In  express  passive  trusts,  a  naked 
legal  title  remains  in  the  trustee,  but  the  equitable  and  real 
property,  with  all  its  features  and  incidents,  belongs  to  the 
beneficiary,  so  that  he  is  treated  in  every  sense  as  the  true 
owner.  Where  land  is  given  to  a  trustee  merely  upon  the 
trust  to  convey  the  same  to  a  specified  beneficiary,  the  prin- 
ciple applies  with  equal  force,  and  the  cestui  que  trust  is 
clothed  with  the  equitable  property,  although  the  directions 
of  the  trust  have  not  yet  been  carried  into  effect  by  an 
actual  transfer  to  him  of  the  legal  estate.  In  another  class 
of  express  active  trusts,  where  by  the  terms  of  the  creation 
the  possession  of  the  subject-matter,  and  the  control,  man- 
agement, and  disposition  of  it  during  the  time  for  which  the 
trust  is  to  last,  are  given  to  the  trustee,  to  be  exercised  by 
him  according  to  his  own  discretion,  no  such  equitable  prop- 
erty passes  to  the  cestui  que  trust,  and  his  right  for  the 
time  being  is  only  a  thing  in  action,  not  an  estate ;  no  obli- 
gation rests  upon  the  trustee  as  a  part  of  his  fiduciary  duty 
to  make  a  transfer  of  the  title  to  the  beneficiary;  the 
**  ought  "  required  by  the  maxim  is  not  present,  and  the 
principle  itself  does  not  apply  as  long,  at  least,  as  the  trust 
remains  alive.^ 

manner  as  if  the  final  acts,  contemplated  by  the  parties,  had  been  executed 
exactly  as  they  ought  to  have  been." 

1  For  illustration,  see  ante,  §  153,  and  notes.  It  should  be  remembered 
that,  according  to  the  legislation  of  several  states,  in  the  only  express  trusts 
of  land  which  are  permitted  by  the  statutes,  it  is  enacted  that  all  estate 

(a)  Sections  374-376  are  cited  in  Savings  &  Loan  Soc.  v.  Davidson,  97 
Fed.  696,  38  C.  C.  A.  365. 


§    375  EQUITY    JURISPRUDENCE.  624 

§  375.  Trusts  Arising  by  Operation  of  Law. — The  principle 
is  no  less  truly  and  directly  the  source  of  the  equitable 
ownership  regarded  as  held  by  the  beneficiary  in  all  trusts 
which  arise  by  operation  of  law,  resulting,  implied,  or  con- 
structive. Although  the  fiduciary  relation  is  not  created 
by  the  terms  of  any  direct  conveyance,  devise,  assignment, 
or  agreement,  yet  by  the  settled  doctrines  of  the  equity 
jurisprudence,  an  equity  exists  between  the  parties  which 
is  treated  as  worked  out;  an  obligation  to  convey  the  sub- 
ject-matter rests  upon  the  holder  of  the  legal  title,  which 
is  treated  as  though  performed.  Some  modern  judges  of 
great  learning  and  ability  have  said  that  the  relations  com- 
monly known  as  "  constructive  "  or  ''  resulting  "  trusts 
are  only  trusts  sub  modo,  are  called  trusts  only  by  way  of 
analogy,  and  for  want  of  a  better  and  more  distinctive 
name.  Even  if  this  criticism  upon  the  ordinary  nomen- 
clature be  well  founded,  it  does  not  deny,  and  was  not  in- 
tended to  deny,  the  existence  of  the  real,  beneficial,  equi- 
table property  in  the  beneficiary.  He  is  admitted  to  be  the 
equitable  owner,  with  all  the  incidents  of  ownership, 
although  the  legal  title  is  vested  in  another  person.  The 
beneficiary  may  not  have  anything  which  the  law  requires 
as  a  *'  title,"  he  may  even  be  without  any  written  evidence 
of  his  right,  his  proprietorship  may  rest  wholly  upon  acts 
and  words,  but  still  he  is  the  equitable  owner  because  equity 
treats  that  as  done  which  in  good  conscience  ought  to  be 
done.^ 

and  title,  legal  and  equitable,  shall  be  vested  in  the  trustee,  and  that  the 
cestui  que  trust  shall  have  no  estate,  but  only  a  right  of  action  to  compel  a 
faitliful  performance  by  the  trustee. 

1  See  illustrations,  ante,  §  155,  and  notes.  The  opinion  of  the  lord  chan- 
cellor, Lord  St.  Leonards,  will  apply  to  all  such  cases.  A  man  had  con- 
veyed his  land  in  fee  by  a  deed  which  was  fraudulent  as  against  himself, 
80  that  he  could  have  procured  the  deed  to  be  set  aside  in  equity;  still  the 
legal  estate  was  wholly  conveyed  to  the  grantee.  Afterwards  the  grantor 
devised  the  same  land,  and  the  question  was.  What  interest  did  he  have  in 
the  hind,  and  was  it  devisable?  See  Stump  v.  Gaby,  2  De  Gex,  M.  &  G.  623, 
C.'jO.  Lord  St.  Leonards  said:  "  What,  then,  is  the  interest  of  a  party  in 
an  estate  which  he  has  conveyed  under  circumstances  which  would  give  a 
right  in   this  court  to  have  the  deed  set  aside?     In  the  view  of  this  court 


€25      REGARDS    THAT    DONE    WHICH    OUGHT    TO    BE    DONE.    §    376 

§  376.  Mortgage;  Equity  of  Redemption. —  There  remains 
but  one  important  equitable  estate  to  be  considered,  that 
of  the  mortgagor,  called  his  equity  of  redemption;  and  a 
careful  analysis  will  show  that  the  existence  of  this  as  a 
part  of  equity  jurisprudence  can  be  accounted  for  upon  no 
principle  whatever  other  than  the  one  under  discussion. 
By  a  mortgage  in  fee  the  legal  estate  is  vested  in  the  mort- 
gagee, and  upon  the  condition  being  broken,  this  legal  estate 
becomes  absolute.  Nevertheless  an  equity  with  respect  to 
the  land  exists  between  the  two  parties,  a  right  in  the  mort- 
gagor and  an  obligation  upon  the  mortgagee.  "  Equity  of 
redemption  "  is  only  an  abbreviation  of  "  right  in  equity 
to  have  a  redemption."  The  mortgagor  is  clothed  with  this 
equitable  right  to  a  redemption,  or  in  other  words,  this 
right  to  compel  a  reconveyance  and  redelivery  of  posses- 
sion at  any  time  upon  payment  of  the  debt  secured  and 
interest,  while  the  corresponding  obligation  rests  on  the 
mortgagee  to  make  the  conveyance  r.rid  delivery.  Upon 
the  universal  principle  of  treating  everything  as  done  which 
in  good  conscience  ought  to  be  done,  equity  regards  this 
right  of  the  mortgagor,  not  as  a  mere  thing  in  action,  but 
as  jDroperty,  as  an  estate,  as  the  real,  beneficial  ownership 
of  the  land,  subject,  however,  to  the  lien  created  by  the 
mortgage  as  a  security  to  the  mortgagee  for  the  payment  of 
liis  demand.  The  mortgagor's  equitable  property  is,  in 
this  respect,  exactly  analogous  to  the  equitable  estate  of  a 

he  remains  the  owner,  and  the  consequence  is,  that  he  may  devise  the  estate, 
not  as  a  legal  estate,  but  as  an  equitable  estate.  The  testator  therefore  had 
a  devisable  interest."  Now,  where,  as  in  this  case,  the  legal  title  had  vested 
in  the  grantee,  upon  what  principle  was  the  grantor  still  regarded  as  the 
equitable  owner,  with  all  the  incidents  of  the  beneficial  ownership?  Plainly 
because  from  the  fravid  an  equity  with  respect  to  the  land  existed  between 
the  grantee  and  the  grantor,  and  an  obligation  rested  upon  the  former  to 
reconvey.  Since  the  grantee  in  good  conscience  ought  to  reconvey,  equity 
treated  the  parties  as  though  this  had  been  done,  and  the  grantor  as  hold- 
ing the  equitable  property.  Upon  the  same  principle  is  based  the  notion 
of  equitable  property  in  the  beneficiary  in  all  constructive  and  other  implied 
trusts.  See  also  Gresley  v.  Mousley,  4  De  Gex  &  J.  78j  Uppington  v.  Bullen, 
2  Dru.  &  War.  184. 

Vol.  1  —  40 


§§    377,    378  EQUITY   JURISPRUDENCE.  626 

vendee  subject  to  a  lien  in  favor  of  the  vendor  as  security 
for  payment  of  the  purchase  price.^ 

§  377.  Conclusions. —  In  the  foregoing  discussion  I  have 
shown,  in  the  most  conclusive  manner,  that  every  species 
of  purely  equitable  property,  and  of  ■  equitable  interests 
analogous  to  property,  except  those  which  are  intentionally 
created  by  the  direct  and  affirmative  operation  of  some  in- 
strument similar  in  its  action  to  a  conveyance  at  law/  is  a 
certain  and  necessary  result  of  the  principle,  that  equity 
treats  that  as  done  which  in  good  conscience  ought  to  be 
done.  It  is  no  exaggeration,  therefore,  to  say  that  the 
principle  lies  at  the  very  foundation  of  the  department  of 
equity  jurisprudence  which  deals  with  equitable  estates, 
property,  and  interests  analogous  to  property. 


SECTION  n. 


EQUITY  LOOKS  TO  THE  INTENT  RATHER  THAN  TO  THE  FORM. 

ANALYSIS. 

S  378.  Its  meaning  and  effect. 

§  379.  Legal  requirements  of  mere  form. 
IS  380-384.  Is  the  source  of  equitable  doctrine*. 

§  380.  Of  equitable  property. 

i  381.  Of  penalties  and  forfeitures. 

§  382.  Of  mortgages. 

{  383.  Effect  of  the  seal. 

§  384.  Other  special  instances. 

§  378.  Its  Meaning  and  Effect. —  The  principle  involved 
in  this  maxim,  which  is  one  of  great  practical  importance, 
pervades  and  affects  to  a  greater  or  less  degree  the  entire 
system  of  equity  jurisprudence,  and  is  inseparably  con- 
nected with  that  which  forms  the  subject  of  the  preceding 
section.    In  faxit,  it  is  only  hy  looking  at  the  intent  rather 

§  376,  1  I'or  autliorities  and  illustrations,  see  ante,  §§  1G2,  163,  and  notes. 

§  377,  1  The  lien  held  by  tlie  mortgagee,  created  by  the  affirmative  oper- 
ation of  the  mortgage,  and  some  othei"  equitable  liens,  are  examples  of  thia 
cIam. 


627  LOOKS    TO    INTENT   RATHER    THAN    TO    FORM.  §    37^ 

than  at  the  form,  that  equity  is  able  to  treat  that  as  done 
ivhich  in  good  conscience  ought  to  he  done.  In  explaining 
the  meaning  and  operation  of  the  one  maxim,  and  the  effects 
produced  by  it,  I  have  necessarily  described  the  significance 
and  workings  of  the  other.  The  two  principles  act  together 
and  aid  each  other,  and  it  is  by  their  universality  and  truth 
that  much  of  equity  jurisprudence  which  is  peculiar  and 
distinctive,  in  contrast  with  the  law,  has  been  developed*. 
Equity  always  attempts  to  get  at  the  substance  of  things, 
and  to  ascertain,  uphold,  and  enforce  rights  and  duties- 
which  spring  from  the  real  relations  of  parties.  It  will 
never  suffer  the  mere  appearan.ce  and  external  form  to- 
conceal  the  true  purposes,  objects,  and  consequences  of  a 
transaction.''  This  principle  of  looking  after  the  intent 
and  giving  it  effect  was  fully  recognized  and  distinctly 
formulated  at  an  early  day.  In  one  leading  case  Lord: 
Chancellor  Macclesfield  said:  ''  The  true  ground  of  relief 
against  penalties  is  from  the  original  intent  of  the  case,. 
where  the  penalty  is  designed  only  to  secure  money,  and  the 
court  gives  the  party  all  that  he  expects  or  desired. "  ^  In 
another  case  Lord  Thurlow  said :  * '  The  rule  is,  that  where 
a  penalty  is  inserted  merely  to  secure  the  enjoyment  of  a 
collateral  object,  the  enjoyment  of  that  object  is  consid- 
ered as  the  principal  intent  of  the  deed,  and  the  penalty 
only  as  occasional." ^  It  is  true  that  in  both  of  these  cases 
the  court  was  dealing  with  penalties;  but  the  principle 
stated  in  them  is  of  universal  application,  that  equity 
always  seeks  for  the  real  intent  under  the  cover  of  whatever 
forms  and  appearances,  and  will  give  effect  to  such  intent 
unless  prevented  by  some  positive  and  mandatory  rule  of 
the  law. 

1  Peachy  v.  Duke  of  Somerset,   1  Strange,  447,  Prec,  Ch.  568,  2  Eq.  Caa. 

Abr.  227,  228. 

2  Sloman  v.  Walter,  1  Brown  Ch.  418.     And  see  2  Lead.  Cas.  Eq.,  4th  Am. 
ed.,  2014,  2022,  and  notes. 

(a)    The  text  is  quoted  in  Heinze    v.  Butte  &  B.     Consol.  Min.  Co.,   (C5, 
C.  A.),  129  Fed.  274,  287. 


§    379  EQUITY    JURISPRUDENCE.  628 

§  379.  Legal  Requirements  of  Form. —  The  ancient  com- 
mon law  iDaid  great  deference  to  matters  of  pure  form,  as, 
for  example,  in  the  symbolical  process  called  '^  livery  of 
€eisin,"  by  which  alone  a  freehold  estate  in  land  could 
be  transferred.  Although  such  observances  have  long 
been  abandoned,  still  the  present  rules  of  the  law  permit 
property  in  land  or  chattels  to  be  created,  transferred,  or 
acquired  only  in  certain  defined  modes,  by  means  of  the 
certain  specified  acts  or  events  which  constitute  all  the  pos- 
sible legal  titles.^  It  was  also  one  characteristic  feature 
of  the  ancient  law  that  it  held  contracting  parties  to  a 
most  rigid  observance  of  all  the  stipulations  of  their  valid 
agreements;  performance  to  the  very  letter  of  every  cove- 
nant or  promise  was  the  inflexible  rule.^  Still  another 
purely  formal  element  of  the  law  consisted  in  the  extreme 
importance  which  it  attached  to  the  seal.  The  momentous 
^nd  often  most  arbitrary  results  which  flowed  from  the 
presence  or  absence  of  a  seal,  and  its  effect  upon  private 
rights  of  property  and  of  contract,  rendered  many  of  the 
rules  of  the  early  law  peculiarly  rigid  and  almost  barbarous. 
The  equity  jurisprudence,  in  all  these  respects,  differed 
widely  from  the  common  law;  from  the  very  beginning  it 
was  distinguished  by  an  entire  absence  of  these  arbitrary 
and  purely  formal  incidents.  That  they  have  now,  in  a 
great  degree,  disappeared  from  the  law  itself,  which  has 
in  consequence  become  more  enlightened  and  more  just,  is 
wholly  due  to  its  gradual  adoption  of  equitable  principles, 

1  See  an  enumeration  of  these  modes,  ante,  §  3GG. 

2  For  example,  if  A  borrowed  one  hundred  pounds  to  be  repaid  in  six 
months,  and  as  security  gave  his  creditor  a  conditional  conveyance  in  fee 
of  an  estate  worth  one  hundred  thousand  pounds,  to  become  void  if  the 
money  was  paid  on  the  specified  day,  and  in  default  of  such  payment  to  be 
absolute,  and  for  any  reason  the  debtor  suffered  the  pay  day  to  pass  without 
performance,  the  ancient  law  would  no  more  relieve  the  debtor  from  the 
onerous  provisions  of  his  conveyance,  or  modify  their  rigor,  than  it  would 
discharge  him  from  his  obligation  to  pay  the  debt  of  one  hundred  pounds; 
both  would  be  regarded  as  standing  upon  exactly  the  same  foundation  of 
express  contract. 


629  LOOKS   TO    INTENT   RATHER   THAN    TO   FORM.  §    380 

to  its  acceptance  of  doctrines  originating  in  the  court  of 
chancery," 

§  380.  Is  the  Source  of  Equitable  Doctrines  —  Of  Property. 
I  shall  now  state,  by  way  of  illustration,  sorae  of  the  most 
important  instances  in  which  the  principle  has  been  applied^ 
and  the  settled  doctrines  of  equity  jurisprudence  which  are 
its  immediate  results.  The  first,  and  by  far  the  most  im- 
portant consequence  of  the  principle,  reaching  through  a 
large  part  of  the  equity  jurisprudence,  is  found  in  every 
species  of  equitable  property,  estate,  or  interest,  and  of 
equitable  lien,  so  far  as  these  exist  by  the  doctrines  of 
equity,  but  not  by  those  of  the  law.  While,  as  is  shown  in 
the  last  section,  all  these  purely  equitable  property  inter- 
ests and  liens  arise  from  the  direct  operation  of  the  grand 
principle,  equity  treats  that  as  done  which  in  good  con- 
science ought  to  be  done,  still  this  maxim  could  only  produce 
such  effects  in  consequence  of  the  other  principle,  that 
equity  looks  at  the  intent  rather  than  at  the  form.*  In 
every  kind  of  equitable  property,  or  interest  analogous  to 
property,  the  external  acts  or  events  peremptorily  required 
by  the  law  in  order  to  the  existence  of  any  property  are 
wholly  wanting;  so  that  if  the  external  form  of  the  trans- 
action had  been  regarded,  no  property,  nor  right  resemb- 
ling property,  could  possibly  exist.  It  is  by  disregarding 
these  forms  and  looking  at  the  real  relations  involved  in 
the  acts  of  the  parties,  at  the  real  substance  and  intent  of 
the  transaclion,  that  the  court  of  chancery  has  built  up  its 
magnificent  structure  of  equitable  property,  estates,  and 
proprietary  interests.  The  same  is  true  of  a  large  part  of 
equitable  liens.  The  external  form  is  either  an  assignment, 
which  at  the  law  is  wholly  nugatory,  or  an  executory 
agreement,  which  at  law  only  creates  a  mere  personal  right 
of  action, —  at  most  a  claim  for  damages;  but  equity,  go- 
ing below  this  mere  appearance,  and  seeing  the  real  intent, 

§  379,    (a)  This  paragraph  of  the  Co.,  81  Md.  559,  32  Atl.  505,  29  L,  R. 

text  is  cited  in  Williams  v.  Uncom-  A.  262. 

paligre   Canal   Co.,    13   Colo.   477,   22  §    380,     (a)    The   text   is   cited   in 

Pac.   806;    Hooper   v.    Central   Trust  Clarke  v.  Clarke,  46  S.  C.  230,  57  Am. 


§    381  EQUITY   JURISPRUDENCE.  630 

■gives  effect  thereto  by  treating  tlie  assignment  or  agree- 
ment as  creating  a  definite  lien  upon  specific  lands,  or 
chattels,  or  securities,  or  other  kind  of  fund,  as  the  case 
may  be.^  ^  The  discussions  of  the  last  preceding  section 
fully  illustrate  and  demonstrate  the  correctness  of  this 
'Conclusion. 

§  381.  Penalties  and  Forfeitures. —  It  was  an  inflexible  doc- 
trine of  the  ancient  common  law  that  parties  must  be  held  to 
a  strict  performance  of  all  the  stipulations  of  their  valid 
agreements ;  that  is,  unless  the  agreement  was  wholly  void 
from  its  illegality.  Whenever,  therefore,  a  contract  pro- 
vided for  a  penalty  or  a  forfeiture,  the  full  penalty  or  for- 
feiture would  be  enforced  by  a  court  of  law  without  the 
slightest  regard  to  the  amount  of  damages  actually  sus- 
tained by  the  obligee  or  promisee  from  the  default.  The 
action  of  equity  in  such  cases  affords  a  most  striking  illus- 
tration of  the  principle  which  we  are  discussing.  It  was  at 
:first  confined  to  contracts  for  the  payment  of  some  definite 
sum  of  money,  in  which  the  debtor  also  bound  himself, 
in  case  of  his  default,  to  pay  a  larger  sum  by  way  of  penalty, 
or  that  the  creditor  might  become  absolute  owner  of  specific 

1  As  a  single  illustration :  An  instrument  purporting  to  be  a  mortgage 
of  law,  but  imperfectly  executed  by  the  omission  of  a  seal,  or  in  some  other 
manner,  so  as  to  be  defective  in  form,  is  wholly  nugatory  at  law  as  a  valid 
mortgage,  or  as  giving  any  interest  in  or  claim  upon  the  parcel  of  land 
described.  Equity,  however,  not  saying  that  the  instrument  is  a  true  legal 
mortgage,  declares  that  it  is  an  efficient  agreement  to  give  a  mortgage,  and, 
as  such,  that  it  creates  an  equitable  lien  upon  the  land,  valid  for  all  pur- 
poses, and  as  against  all  parties,  except  a  purchaser  of  the  land  for  a  valuable 
<!onsideration  and  without  notice:  See  Love  v.  Sierra  Nevada,  etc.,  Co.,  32 
Cal.  639,  653,  654,  91  Am.  Dec.  602,  and  cases  cited. 

St.  Rep.  675    (as  to  the  doctrine  of  Woodstock    Iron,    etc.,    Co.,    87    Ala. 

conversion).  294,  6  South.   195    (defective  attesta- 

(b)  A  deed  defective  in  form  will  tion)  ;  Dreutzer  v.  Lawrence,  58  Wis. 

generally   be  treated   in   equity   as  a  594,  17  N.  W.  423   (same)  ;  Wood  v. 

contract  to  convey,   specific  perform-  Rayburn,    18   Oreg.   3,  22   Pac.   521; 

ance  of  which   will  be  decreed  .when  Hyne  v.  Osborn,  62  Mich.  235,  28  N. 

that  remedy  is  not  inequitable.     See  W.    821.      As   to    the    equitable    lien 

MundH   v.   Cassidy,   98   N.   C.   558,   4  created    by    defective    mortgages.    Bee 

.S.  E.  355    (luck  of  seal)  ;   Sparks  v.  8   1237. 


631  LOOKS    TO    INTENT    BATHER    THAN    TO    FOEM.  §    381 

property  of  a  larger  value  by  way  of  forfeiture,  wliere  the 
intent  was  plain  that  the  penalty  or  forfeiture  was  added 
simply  as  a  security  for  the  pajTnent  of  the  real  indebted- 
ness. This  action  of  equity  with  reference  to  purely  money 
contracts  was  soon  extended  to  other  agreements  in  which 
a  party  undertook  to  perform  some  act,  to  render  some  ser- 
vice, to  transfer  some  property,  to  surrender  some  right, 
and  a  penalty  or  forfeiture  was  added.  The  general  doc- 
trine was  finally  settled  that,  wherever  a  penalty  or  forfeit- 
ure is  inserted  merely  to  secure  the  payment  of  money, 
or  the  performance  of  some  act,  or  the  enjoyment  of  some 
right  or  benefit,  equity  regards  such  payment,  performance, 
or  enjoyment  as  the  real  and  principal  intent  of  the  instru- 
ment, and  the  penalty  or  forfeiture  as  merely  an  accessory, 
and  will  therefore  relieve  the  debtor  party  from  such 
penalty  or  forfeiture,  whenever  the  actual  damages  sus- 
tained by  the  creditor  party  can  be  adequately  compensated. 
The  application  of  the  principle  in  such  cases,  and  the  relief 
against  penalties  or  forfeitures,  must  always  depend  upon 
the  question  whether  compensation  can  or  cannot  be  made. 
If  the  principal  contract  is  merely  for  the  payment  of 
money,  there  can  be  no  difficulty;  the  debtor  party  will 
always  be  relieved  from  the  penalty  or  foreiture  upon  pay- 
ing the  amount  due  and  interest.  If  the  principal  contract 
is  for  the  performance  of  some  other  act  or  undertaking, 
and  its  non-performance  can  be  pecuniarily  compensated, 
the  amount  of  such  damages  will  be  ascertained,  and  the 
debtor  will  be  relieved  upon  their  payment.^  But  the  prin- 
ciple, in  this  scope  of  its  operation,  is  not  confined  to  agree- 
ments; it  has  been  extended  so  as  to  prevent  the  forfeiture 
of  a  tenant's  estate  under  a  clause  of  re-entry  for  the  non- 
payment of  rent,  or  for  the  breach  of  some,  though  not  of 

1  Peachy  v.  Duke  of  Somerset.  1  Strange,  477;  Sloman  v.  Walter,  1  Brown 
Ch.  418,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  2014,  2023,  2044;  Elliott  v.  Turner, 
13  Sim.  477;  Rogan  v.  Walker,  1  Wis.  527;  Grigg  v.  Landis,  21  N.  J.  Eq. 
494;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct.  215;  Hagar  v.  Buck,  44  Vt.  285,  8 
Am.  Ecp.  368. 


§    382  EQUITY   JURISPRUDENCE.  632 

all,  the  covenants  contained  in  a  lease  ;^  and  to  prevent  tlie 
enforcement  of  a  forfeiture  for  the  non-performance  of  con- 
ditions subsequent.^  As  equity  will  often  interfere  in  this 
manner  to  relieve  against  a  penalty  or  forfeiture  which  per- 
haps would  be  entirely  valid  at  law,  it  follows  as  a  matter  of 
course  that  a  court  of  equity  will  never,  by  its  affirmative 
action,  or  by  the  affirmative  provisions  of  its  decree,  enforce 
a  penalty  or  forfeiture,  or  any  stipulation  of  that  nature, 
but  will  always  leave  the  party  entitled  to  prosecute  his 
claim  in  a  court  of  law  according  to  legal  rules.* 

§  382.  Mortgages. —  Another  most  remarkable  applica- 
tion of  the  principle,  from  which  arose  an  entire  department 
of  equity  jurisprudence,  was  the  equity  of  redemption, — 
the  equitable  right  and  estate  of  the  mortgagor,  after  the 
legal  title  of  the  mortgagee  had  become  absolute  by  a  non- 
performance of  the  condition.  Looking  at  the  real  intent 
of  the  parties,  and  considering  the  debt  as  the  substantial 
feature,  and  the  conveyance  as  a  security,  only,  for  its  pay- 

2  The  tenant  will  be  relieved  from  a  forfeiture  incurred  by  his  breach  of 
a  condition  for  a  non-payment  of  rent,  because  the  extent  of  the  lessor's  real 
claim,  the  amount  of  rent  due,  can  easily  be  ascertained,  and  satisfied  by  a 
payment.  Tlie  relief  may  be  given  on  the  breach  of  some  other  covenants, 
but  is  not  generally  extended  to  covenants  to  repair,  to  insure,  etc.  See 
2  Lead.  Caa.  Eq.,  4th  Am.  ed.,  2014,  2023,  2044,  and  notes;  Hill  v.  Barclay, 
16  Yes.  402,  18  Ves.  56,  62;  Reynolds  v.  Pitt,  19  Ves.  134;  White  v. 
Warner,  2  Mer.  459;  Ex  parte  Vaughan,  Turn.  &  R.  434;  Green  v.  Bridges, 
4  Sim.  96;  Elliott  v.  Turner,  13  Sim.  477;  Gregory  v.  Wilson,  9  Hare,  683; 
Croft  V.  Goldsmid,  24  Beav.  312;   Palmer  v.  Ford,  70  111.  369. 

8  Smith  V.  Jewett,  40  N.  H.  530;  Warner  v.  Bennett,  31  Conn.  468;  Robin- 
son V.  Loomis,  51  Pa.  St.  78;  Rogan  v.  Walker,  1  Wis.  527;  Hagar  v.  Buck, 
44  Vt.  285,  8  Am.  Rep.  308;  Orr  v.  Zimmerman,  63  Mo.  72. 

•♦Livingston  v.  Tompkins,  4  Jolms.  Ch.  415,  431,  8  Am.  Dec.  598;  McKira 
V.  Whitcliall  Co.,  2  Md.  Ch.  510;  Slioup  v.  Cook,  1  Cart.  135;  Warner  v.  Ben- 
nett, 31  Conn.  468,  478;  LofTorge  v.  West,  2  Ind.  514,  516  (will  not  decree 
forfeiture  of  an  estate  on  account  of  waste)  ;  Smith  v.  Jewett,  40  N.  H.  530, 
534;  Clark  v.  Drake,  3  Chand.  253,  259;  Eveleth  v.  Little,  16  Me.  374,  377; 
Gordon  v.  Ix)wcH,  21  Me,  251,  257  (will  not  enforce  a  penalty  created  by 
statute)  ;  Fitzhugh  v.  Maxwell,  34  Mich.  138  (will  not  enforce  a  forfeiture 
for  noMperformunce  of  a  condition  subsequent  in  a  contract  for  the  sale 
of  land);  Boeolicr  v.  Bceeher,  43  Conn.  556  (same  rule);  Palmer  v.  Ford, 
70  III.  309  (forfeiture  for  non-payment  of  rent);  Orr  v.  Zimmerman,  63 
Mo.  72. 


633  LOOKS    TO    INTENT    llATHER    THAN    TO    FOKM.  §    383 

ment,  the  court  of  chancery  declared  that  a  breach  of  the 
condition  was  in  the  nature  of  a  penalty  which  ought  to  be 
relieved  against,  and  that  the  mortgagee  had  an  equity  to 
redeem  on  payment  of  the  debt  and  interest,  notwithstand- 
ing the  forfeiture  at  law;  and  furthermore,  that  this  right 
of  redemption  could  not  be  given  up,  waived,  or  parted  with 
by  any  stipulation  or  covenant  in  the  deed.^  The  whole 
system  of  equity  jurisprudence  presents  no  finer  example  of 
the  triumph  of  equitable  principles  over  the  arbitrary  and 
unjust  dogmas  of  the  common  law  than  this. 

§  383.  Effect  of  the  Seal.—  The  important  part  played  by 
the  seal  in  the  early  common  law,  and  the  intensely  technical 
and  arbitrary  effects  produced  by  it  according  to  the  legal 
rules,  are  too  well  known  to  require  any  statement.  Equity 
has  applied  its  principle  of  looking  at  the  intent  rather  than 
at  the  form,  in  some  instances,  by  treating  the  presence  of  a 
seal  as  a  matter  of  no  consequence,  as  producing  no  effect 
upon  rights  and  duties  of  parties;  in  other  instances,  by 
disregarding  its  absence  where  such  absence  would  be  fatal 
at  the  law.  Although  the  common  law,  in  theory,  required  a 
valuable  consideration  in  order  to  render  any  agreement 
valid  and  binding,  yet  it  declared  that  a  seal  was  conclusive 
evidence  of  such  a  consideration,  and  under  no  circum- 
stances would  it  permit  this  arbitrary  effect  to  be  removed 
by  evidence  showing,  no  matter  how  clearly,  the  absence 
of  any  consideration.  Equity,  disregarding  such  form  and 
looking  at  the  reality,  always  requires  an  actual  considera- 
tion, and  permits  the  want  of  it  to  be  shown,  notwithstand- 
ing the  seal,  and  applies  this  doctrine  to  covenants,  settle- 
ments, and  executory  agreements  of  every  description.^  * 

§  382,  1  Casborne  v.  Scarfe,  1  Atk.  603;  Howard  v.  Harris,  1  Vern.  190, 
2  Lead.  Cas,  Eq.,  4th  Am.  ed.,  1945,  1949,  1952,  1983;  see  also  ante,  §§  162,  163, 
and  notes. 

§  383,  1  In  Ord  v.  Jolinston,  1  Jur.,  N.  S.,  1063,  1065,  Stuart,  V.  C,  said: 
"  This  court  never  interferes  in  support  of  a  purely  voluntary  agreement,  or 
where  no  consideration  emanates  from  the  individual  seeking  the  performance 

(a)   Selby  v.  Case,  87  Md.  459,  39  Atl.  1041. 


§    383  EQUITY    JUEISPRUDENCE.  634 

Another  application  of  tlie  principle  is  still  more  striking 
and  just.  The  early  common  law  attributed  such  an  efficacy 
to  the  seal  that  a  written  obligation  under  seal  could  only 
be  discharged  by  an  instrument  of  the  same  high  character, 
—  that  is,  by  a  writing  under  seal.  A  subsequent  written 
but  not  sealed  agreement,  revoking  or  modifying  the  terms 
of  the  prior  specialty,  or  a  parol  accord,  or  even  payment 
in  full  unaccompanied  by  technical  release,  or  any  other 
matter  in  pais,  could  not  alter  the  rights  and  liabilities 
arising  from  the  sealed  instrument;  it  could  still  be  en- 
forced against  the  obligor  by  an  action  at  law,  and  such 
acts  furnished  him  no  legal  defense  whatever.  Such  a 
doctrine  was  abhorrent  to  the  spirit  of  equity.  Paying  no 
attention  to  the  form  of  the  transaction,  if  the  act  done  was, 
in  substance,  a  discharge,  the  court  of  equity  treated  it  as 
equivalent  in  its  effects  to  a  technical  release,  and  would 
relieve  the  obligor  in  any  manner  required  by  the  circum- 
stances of  the  case,  even  by  a  decree  for  a  delivery  up  or 
cancellation  of  the  sealed  undertaking.^"     One  most  im- 

of  the  agreement."  In  Houghton  v.  Lees,  1  Jur.,  N.  S.,  8G2,  863,  the  same  judge 
said:  "  Of  the  general  doctrine  of  the  court  on  this  subject,  there  is  no  doubt 
whatever.  This  court  will  not  perform  a  volimtary  agreement,  or  what  ia 
more,  a  voluntary  covenant  under  seal.  Want  of  consideration  is  a  sufficient 
reason  for  refusing  the  assistance  of  the  c  urt,"  See  also  Jefferys  v,  Jefferys, 
Craig  &  P.  138,  141,  per  Lord  Chancellor  Cottenham,  who  says  the  doctrine 
extends  to  contracts,  covenants,  and  settlements,  and  in  other  cases  it  ia 
applied  to  voluntary  executory  trusts;  the  seal  produces  no  effect  whatever 
in  such  voluntary  undertakings:  Cochrane  v.  Willis,  34  Beav.  359;  Meek  v. 
Kettlewell,  1  Phila.  342,  1  Hare,  464;  Hervey  v.  Audland,  14  Sim.  531;  Shep- 
herd v.  Shepherd,  1  Md.  Ch.  244;  Yasser  v.  Vasser,  23  Miss.  378;  Minturn 
V.  Seymour,  4  Johns.  Ch.  497;  Burling  v.  King,  66  Barb.  633;  Estate  of 
Webb,  49  Cal.  541,  545;  Stone  v.  Hackett,  12  Gray,  227.  In  a  few  early 
cases  it  was  held  tliat  voluntary  agreements,  if  under  seal,  should  be  enforced; 
but  these  decisions  and  dicta  have  long  since  been  overruled;  as,  for  example, 
see  Beard  v.  Nutthall,  1  Vern.  427;  Wiseman  v.  Roper,  1  Ch.  Cas.  Ch.  84; 
Tyrrell  v.  'l]o])C,  2  Atk.  562;  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  176. 
2  Of  cour.se  the  discharge  must  be  upon  a  valuable  consideration  in  order 
tnat  equity  might  enforce  it:  Cross  v.  Sprigg,  6  Hare,  552;  Tufnell  v.  Con- 
stable, 8  Sim.  69;  Yeomans  v.  Williams,  L.  R.  1  Eq.  184;  Taylor  v.  Manners, 

(b)    McCrccry  v.  Day,   119  N.  Y.  1,  23  N.  E.   198,   16  Am.  St.  Rep.  793,  6 
L.  U.  A.  506, 


■635  LOOKS    TO    INTENT    RATHER    THAN    TO    FORM.  §    383 

portant  consequence  of  this  principle  is  seen  in  the  legal 
and  equitable  liabilities  of  sureties.  Where  the  surety's 
contract  is  under  seal,  he  is  not,  by  the  strict  common-law 
rules,  discharged  by  any  conduct  of  the  creditor  towards 
the  principal  debtor,  by  an  alteration  of  the  principal 
debtor 's  undertaking,  or  by  an  agreement  with  the  principal 
debtor  extending  his  time  of  payment,  since  the  surety's 
liability  could  only  be  discharged  by  an  instrument  under 
seal.^  Equity  was  therefore  compelled  to  interfere  under 
these  circumstances,  and  relieve  the  surety  by  restraining 
the  creditor  from  suing  at  law,  and  compelling  him  to  sur- 
render and  cancel  the  guaranty.*  There  are  other  instances 
of  the  disregard  shown  by  equity  to  the  presence  or  ab- 
sence of  a  seal  in  determining  the  rights  of  parties.  If, 
for  an  example,  an  instrument,  from  its  imperfect  execution 
in  wanting  a  seal,  is  inoperative  at  law  as  a  conveyance  or 
as  a  mortgage  of  land,  equity  may  treat  it  as  an  agreement 
to  convey  or  to  give  a  mortgage,  and  as  therefore  creating 
an  equitable  interest  in  or  lien  upon  the  land.*" 

L.  R.  1  Ch.  48;  Hurlbut  v.  Phelps,  30  Conn.  42;  Campbell's  Estate,  7  Pa.  St. 
100,  47  Am.  Dec.  503;  Kidder  v.  Kidder,  33  Pa.  St.  2G8.  Tlie  early  common 
law  was  so  monstrous  in  its  adherence  to  this  rule,  that  if  the  debtor  on 
a  bond  or  other  specialty  had  paid  the  demand  in  full,  and  had  even  taken 
a  written  receipt  therefor,  but  had  failed  to  procure  a  surrender  up  of  the 
instrument  or  a  release  of  his  liability,  the  creditor  might  still  sue  at  law 
and  recover  the  full  amount  again,  and  the  law  gave  no  redress  or  defense. 
One  of  the  first  steps  by  which  equity  broke  in  upon  the  rigor  of  the  law 
was  the  remedy  which  it  gave  to  the  obligor  under  these  circumstances,  as 
stated  in  the  text.  It  is  a  fact  that  the  common-law  lawyers  vehemently 
inveighed  against  the  court  of  chancery  for  this  alleged  invasion  of  legal 
rules.  The  equitable  doctrine  long  ago  became  a  part  of  the  law,  but  it  should 
not  be  forgotten  that  it  originated  in  the  court  of  chancery. 

3  Archer  v.  Hale,  1  Moore  &  P.  285;  Aldridge  v.  Harper,  3  Moore  &  S.  518; 
Brooks  v.  Stuart,  1  Beav.  512.  In  most  of  our  states,  if  not  indeed  in  all, 
this  particular  rule  of  the  common  law  does  not  prevail. 

4  Rees  V.  Berrington,  2  Ves.  540,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1867,  1870, 
1896. 

(c)   The  text  is  cited  to  this  point  cited   generally   in    Williams   v.    Un- 

in  Scott  V.  Jenkins  (Fla.),  35  South.  compahgre  Canal  Co.,   13   Colo.  477, 

101;   Frost  v.  Wolf,  77  Tex.  455,   19  22  Pac.  806.     See  §   1237;   as  to  im- 

Am.    St.    Rep.    761,    14    S.    W.    440;  perfectly  executed  deeds,  ante,  §  380, 

Allis    V.    Jones,    45    Fed.    148;    and  note. 


§§    384,    385  EQUITY    JUEISPRUDENCE.  63S 

§  384.  Other  Special  Instances.— other  doctrines  of  equity^ 
by  which  the  strict  terms  of  contracts,  and  the  somewhat 
arbitrary  rules  of  law  relating  thereto,  are  disregarded  in 
order  to  promote  the  ends  of  justice,  may  also  be  referred, 
at  least  partly,  to  this  principle  of  looking  at  the  real  in- 
tent  rather  than  at  the  form.  As  a  mere  illustration,  I 
mention  the  doctrine  which  generally  treats  as  joint  and 
several  the  rights  and  liabilities  arising  from  contracts 
which  are  regarded  by  the  law  as  strictly  joint,  and  the 
many  important  consequences  which  flow  from  this  dif- 
ference. Enough  has  been  said,  however,  to  show  that  the 
principle  is  one  of  very  extensive  application,  and  from  it, 
either  alone  or  in  connection  with  others,  are  derived  large- 
portions  of  equity  jurisprudence." 


SECTION  III. 

HE  WHO  SEEKS  EQUITY  MUST  DO  EQUITY. 

ANALYSIS. 

I  385.  General  meaning  of  the  principle. 
IS  386,  387.  In  what  cases  applicable. 

§  388.  Is  a  general  rule  regulating  the  administration  of  reliefs. 
§•§  389-393.  Illustrations  of  the  principle. 

§  389.  The  wife's  equity. 

§  390.  Equitable  estoppel. 

§  391.  Relief  against  usury. 
§§  392,  393.  Other  special  instances, 
§§  394-39G.  Is  also  the  source  of  certain  equitable  doctrines. 

§  395.  Of  election. 

§  39fi.  Of  marshaling  securities. 

§  385.  Its  Meaning. —  This  maxim  expresses  the  govern- 
ing principle  that  every  action  of  a  court  of  equity,  in  deter- 
mining rights  and  awarding  remedies,  must  be  in  accordance 
with  conscience  and  good  faith.     In  its  broadest  sense  it 

(a)  The  text  is  cited  in  Williams  v.  Uncompahgre  Canal  Co.,  13  Colo.  477, 
22  Pac.  806. 


€37  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    385 

may  be  regarded  as  the  foundation  of  all  equity,  as  the 
source  of  every  doctrine  and  rule  of  equity  jurisprudence; 
since  it  is  undeniable  that  courts  of  equity  do  not  recognize 
and  protect  the  equitable  rights  of  litigant  parties,  unless 
such  rights  are,  in  pursuance  of  the  settled  juridical  no- 
tions of  morality,  based  upon  conscience  and  good  faith. 
But  as  a  practical  principle,  guiding  the  equity  courts  in 
their  administration  of  justice,  the  maxim  is  only  used  in 
a  much  narrower  and  more  special  meaning.  Even  in 
this  narrow  signification  it  is  a  principle  of  most  extensive 
application ;  it  may  be  applied,  in  fact,  in  every  kind  of  liti- 
gation and  to  every  species  of  remedy.  The  meaning  is, 
that  whatever  be  the  nature  of  the  controversy  between  two 
definite  parties,  and  whatever  be  the  nature  of  the  remedy 
demanded,  the  court  will  not  confer  its  equitable  relief  upon 
the  party  seeking  its  interposition  and  aid,  unless  he  has 
acknowledged  and  conceded,  or  will  admit  and  provide  for, 
all  the  equitable  rights,  claims,  and  demands  justly  belong- 
ing to  the  adversary  party,  and  growing  out  of  or  neces- 
^'arily  involved  in  the  subject-matter  of  the  controversy.* 
It  says,  in  effect,  that  the  court  will  give  the  plaintiff  the 
relief  to  which  he  is  entitled,  only  upon  condition  that  he 
has  given,  or  consents  to  give,  the  defendant  such  corre- 
sponding rights  as  he  also  may  be  entitled  to  in  respect  of 
the  subject-matter  of  the  suit.''  This  meaning  of  the  prin- 
ciple was  more  definitely  expressed  by  an  eminent  judge  in 
the  following  terms :  * '  The  court  of  equity  refuses  its  aid 
to  give  to  the  plaintiff  what  the  law  would  give  him  if 
the  courts  of  common  law  had  jurisdiction  to  enforce  it, 
without  imposing  upon  him  conditions  which  the  court 
considers  he  ought  to  comply  with,  although  the  subject 

(a)    This    portion    of    the    text    19  Compton  v.  Jesup,  68  Fed.  263,  316, 

quoted  in  Charleston  &  W.  C.  R'y  Co.  31  U.  S.  App.  486,  15  C.  C.  A.  397. 
V.  Hughes,  105  Ga.  1,  70  Am.  St.  Rep.  (b)   This     sentence     is     quoted     in 

17,  30  S.  E.  072 ;   De  Walsh  v.  Bra-  Charleston  &  W.  C.  Ry  Co.  v.  Hughes, 

man,    160    III.    415,    43    N.    E.    697;  105   Ga.    1,  70  Am.  St.   Rep.   17,  30 

Hooper  v.  Central  Trust  Co.,  81  Md.  S.  E.  972;  Mack  v.  Hill.  28  Mont.  90. 

559,  32  Atl.  505,  29  L.  R.  A.  262;  72  Pac.  307;   Compton  v.  Jesup,  68 


§    385  EQUITY    JURISPRUDENCE.  638 

of  the  condition  should  be  one  which  the  court  would  not 
otherwise  enforce.-'  In  this  narrow  and  particular  sense 
the  principle  becomes  a  universal  rule  governing  the  courts 
of  equity  in  administering  all  kinds  of  equitable  relief, 
in  any  controversy  where  its  application  may  be  necessary 
to  work  out  complete  justice.^  '^ 

1  In  the  two  following  quotations  this  aspect  of  the  principle  is  stated  in 
the  most  accurate  manner:  Hanson  v.  Keating,  4  Hare,  1,  4,  per  Wigram, 
V.  C. :  "The  argument  in  this  case  for  the  defendant  was  founded  upon 
the  well-established  rule  of  this  court,  that  a  plaintiflF  who  would  have  equity 
must  do  equity,  a  rule  by  which,  properly  understood,  it  is  at  all  times  satis- 
factory to  me  to  be  bound.  But  it  is  a  rule  which,  as  it  was  used  in  the 
argument  of  this  case,  takes  for  granted  the  whole  question  in  dispute.  The 
rule,  as  I  have  often  had  occasion  to  observe,  cannot  per  se  decide  what 
terms  the  court  should  impose  upon  the  plaintiff  as  the  price  of  the  decree  it 
gives  him.  It  decides  in  the  abstract  that  the  court,  giving  the  plaintiff 
the  relief  to  which  he  is  entitled,  will  do  so  only  upon  the  terms  of  his 
submitting  to  give  the  defendant  such  corresponding  rights  (if  any)  as 
he  also  may  be  entitled  to  in  respect  of  the  subject-matter  of  the  suit.  What 
those  rights  are  must  be  determined  aHu7ide  by  strict  rules  of  law  [meaning, 
of  course,  rules  of  equity,  not  of  common  law],  and  not  by  any  arbitrary 
determination  of  the  court.  The  rule,  in  short,  merely  raises  the  question 
what  those  terms,  if  any,  should  be.  If,  for  example,  a  plaintiff  seeks  an 
account  against  a  defendant,  the  court  will  require  the  plaintiff  to  do 
equity  by  submitting  himself  to  account  in  the  same  matter  in  which  he 
asks  an  account;  the  reason  of  which  is,  that  the  court  does  not  take  ac- 
counts partially,  and  perhaps  ineffectually,  but  requires  that  the  whole 
subject  be,  once  for  all,  settled  between  the  parties:  Clarke  v.  Tipping, 
4  Beav.  594,  595.  It  is  only  (I  may  observe  as  a  general  rule)  to  the  one 
matter  which  is  the  subject  of  a  given  suit  that  the  rule  applies,  and  not  to 
distinct  matters  pending  between  the  same  parties:  Whitaker  v.  Hall,  I 
Glyn  &  J.  213.  So,  in  the  case  of  a  bill  for  specific  performance,  the  court 
will  give  the  purchaser  his  conveyance,  provided  he  will  fulfill  his  part  of 
the  contract  by  paying  the  purchase-money;  and  e  converso,  if  the  vendor 
were  plaintiff,  the  court  will  assist  him  only  upon  condition  of  his  doing 
equity  by  conveying  to  the  purchaser  the  subject  of  the  contract  upon  re- 
ceiving the  {)urcliase-money.  In  this,  as  in  the  former  case,  the  court  will 
execute  the  matter  which  is  the  subject  of  the  suit,  wholly,  and  not  partially.- 

Fed.  263,  310,  31  U.  S.  App.  480,  15  Gregory,  111   Ind.  504,  13  N.  E.  39; 

C.  C.  A.  397.  Snow  v.   Blount,    182   Mass.   489,   65 

(e)    The  text  is  quoted   in   Kempe  N.  E.  845    (citing  this  and  following 

V.  Campbell,  44  Oiiio  St.  210,  216,  0  sections  of  the  text)  ;  Interstate  Sav. 

N,  E.  506;  cited  in  Mahoney  v.  Bost-  &  L.  Assn.  v.  Badgley,  115  Fed.  390; 

wick,   90    Cal.   53,   30    I'ac.    1020,   31  Bonsiek    v.    Thomas,    OG    Fed.    104; 

Am.   St.  Bop.   175;   Wells  v.   Fraiuis,  Brunner  v.  Warner, (Tenn.  Ch.  App. ) ,. 

7   Colo.   330,   4    Pac.    49,    .55;    Otis   v.  r)2  S.  W.  608.     . 


639  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    386 

§  386.  When  Applicable. —  If  we  analyze  this  general 
formula,  we  shall  obtain  a  more  accurate  notion  of  the  real 
scope  and  effect  of  the  principle.  In  the  first  place,  the  rule 
only  applies  where  a  party  is  appealing  as  actor  to  a  court 
of  equit}^  in  order  to  obtain  some  equitable  relief;  that  is, 
either  some  relief  equitable  in  its  essential  nature,  as  an 
injunction  or  a  cancellation,  or  equitable  because  it  may 
come  within  the  power  of  the  court  to  administer  by  virtue- 
of  its  concurrent  jurisdiction,  as  an  accounting,  or  a  pecu- 
niary recovery;  and  it  is  necessarily  assumed  that  the 
party  would,  but  for  the  operation  of  the  rule,  be  entitled  to 

So,  if  a  bill  be  filed  by  the  obligor  in  an  usurious  bond,  to  be  relieved 
against  it,  the  court,  in  a  proper  case,  will  cancel  the  bond,  but  only  upon 
terms  of  the  obligor  refunding  to  the  obligee  the  money  actually  advanced. 
The  reasoning  is  analogous  to  that  in  the  previous  cases.  The  equity  of  the 
obligor  is  to  have  the  entire  transaction  rescinded.  The  court  will  do  this  so 
as  to  remit  both  parties  to  their  original  positions;  it  will  not  relieve  the 
obligor  from  his  liability,  leaving  him  in  possession  of  the  fruits  of  the 
illegal  transaction  he  complains  of.  I  know  of  no  case  which  cannot  be 
explained  upon  this  or  analogous  reasoning;  and  my  opinion  is,  that  the 
court  can  never  lawfully  impose  merely  arbitrary  conditions  upon  a  plain- 
tiff, only  because  he  stands  in  that  position  upon  the  record,  but  can  only 
require  him  to  give  the  defendant  that  which  by  the  law  of  the  court,  inde- 
pendently of  the  mere  position  of  the  party  on  the  record,  is  the  right  of  the 
defendant  in  respect  of  the  subject  of  the  suit.  A  party,  in  short,  does  not, 
by  becoming  plaintiff  in  equity,  give  up  any  of  his  rights,  or  submit  those 
rights  to  the  arbitrary  disposition  of  the  court.  He  submits  only  to  give 
the  defendant  his  rights  in  respect  of  the  subject-matter  of  the  suit,  on  con- 
dition of  the  plaintiff  obtaining  his  own.  Cases  may  perhaps  be  suggested 
in  which  a  question  never  can  arise  except  against  a  plaintiff;  but  as  a 
general  proposition,  it  may,  I  believe,  be  correctly  stated,  that  a  plaintiff 
will  never,  in  that  character,  be  compelled  to  give  a  defendant  anything  but 
what  the  defendant  might,  as  plaintiff,  enforce,  provided  a  cause  of  suit 
arose:  Lady  Elibank  v.  Montolieu,  5  Ves.  737;  Sturgis  v.  Champneys,  5 
Mylne  &  C.  102."  It  will  appear  subsequently  that  this  last  proposition 
of  the  learned  judge  is  expressed  in  somewhat  too  strong  terras,  and  requires 
important  limitations  upon  its  generality.  See  also  the  same  view  expressed 
by  the  same  judge  in  Neeson  v.  Clarkson,  4  Hare,  97,  101 ;  Sturgis  v.  Champ- 
neys, 5  Mylne  &  C.  97,  101,  per  Lord  Cottenham:  "There  are  many  cases  in 
which  this  court  will  not  interfere  with  a  right  which  the  possession  of  a 
legal  title  gives,  although  the  effect  be  directly  opposed  to  its  own  principles 
as  administered  between  parties  having  equitable  interests  only,  such  as  in 
cases  of  subsequent  encumbrancers  without  notice  gaining  a  preference  over 
a  prior  encumbrancer  by  procuring  the  legal  estate.  It  may  be  to  be  re- 
gretted that  the  rights  of  property  should  thus  depend  upon   accident,  and 


f    386  EQUITY   JURISPRUDENCE.  640 

all  tlie  relief  wliicli  he  demands.'  Unless  the  party  were 
otherwise  so  entitled,  there  would  plainly  be  no  occasion  for 
invoking  the  rule.  With  respect  to  the  terms  which  may 
he  imposed  upon  the  party  as  a  condition  to  his  obtaining 
the  relief  in  accordance  with  the  rule, —  that  is,  the 
**  equity  "  which  he  must  do, —  it  is  undoubtedly  true,  as 
said  by  Vice-Chancellor  Wigram,  that  the  court  obtains  no 
authority  from  this  principle  to  impose  any  arbitrary  con- 
ditions not  warranted  by  the  settled  doctrines  of  equity 
jurisprudence;  the  court  cannot  deprive  a  plaintiff  of  his 
full  equitable  rights,  under  the  pretense  of  awarding  to  the 
defendant  something  to  which  he  has  no  equitable  right, 
something  which  equity  jurisprudence  does  not  recognize. 
The  principle  only  requires  the  plaintiff  to  do  **  equity.'* 
According  to  its  true  meaning,  therefore,  the  terms  imposed 
upon  the  plaintiff,  as  the  condition  of  his  obtaining  the 
relief,  must  consist  of  the  awarding  or  securing  to  the  de- 
fendant something  to  which  he  is  justly  entitled  by  the  prin- 
ciples and  doctrines  of  equity,  although  not  perhaps  by 
those  of  the  common  law, —  something  over  which  he  has 
a  distinctively  equitable  right.     In  many  cases,  this  right  or 

be  decided  upon,  not  according  to  any  merits,  but  upon  grounds  purely 
technical.  This,  however,  has  arisen  from  the  jurisdiction  of  law  and  equity 
being  separate,  and  from  the  rules  of  equity,  though  applied  to  subjects  with- 
out its  own  exclusive  jurisdiction,  not  having,  in  many  cases,  been  extended 
to  control  matters  properly  subject  to  the  jurisdiction  of  the  courts  of  com- 
mon law.  Hence  arises  the  extensive  and  beneficial  rule  of  this  court,  that 
he  who  asks  for  equity  must  do  equity;  that  is,  this  court  refuses  its  aid  to 
give  to  the  plaintiff  what  the  law  would  give  him  if  the  courts  of  common 
law  had  jurisdiction  to  enforce  it,  without  imposing  upon  him  conditions 
which  the  court  considers  he  ought  to  comply  with,  although  the  subject  of 
Die  condition  should  be  one  which  this  court  would  not  otherwise  enforc«>. 
If,  therefore,  this  court  refuses  to  assist  a  husband  who  has  abandoned  hii=» 
wife,  or  the  assignee  of  an  insolvent  hiisband  who  claims  against  both,  in 
recovering  tlie  property  of  the  wife,  without  securing  out  of  it  for  her  a 
proper  maintenance  and  support,  it  not  only  does  not  violate  any  principle, 
but  acts  in  strict  conformity  with  a  rule  by  which  it  regulates  its  pro- 
ceedings in  other  cases." 

(a)  The  text  is  cited  to  this  effect  v.  Thomas,  66  Fed.  104;  Otis  v. 
in  Flanary  v.  Kane  (Va.),  46  S.  E.  Gregory,  111  Ind.  504,  13  N.  E.  39. 
312;   and   cited   generally   in   Bensick 


'641  HE   WHO   SEEKS   EQUITY   MTJST   DO   EQUITY.  §   386 

relief  thus  secured  to  or  obtained  by  the  defendant,  under 
the  operation  of  the  rule,  might  be  recovered  by  him,  if  he 
as  plaintiff,  the  parties  being  reversed,  had  instituted  a  suit 
in  equity  for  that  purpose.  But  this  is  not  indispensable, 
nor  is  it  even  always  possible.  The  rule  may  apply,  and 
under  its  operation  an  equitable  right  may  be  secured  or  an 
equitable  relief  awarded  to  the  defendant  which  could  not 
be  obtained  by  him  in  any  other  manner, —  that  is,  which  a 
court  of  equity,  in  conformity  with  its  settled  methods, 
either  would  not,  or  even  could  not,  have  secured  or  con- 
ferred or  awarded  by  its  decree  in  a  suit  brought  for  that 
purpose  by  him  as  the  plaintiff.*  *• 

1  Upon  this  point  the   last  proposition  of  V.  C.  Wigram,  in  his  opinion 

quoted  ante,  under  §  385,  is  stated  in  much  too  strong  terms,  without 
the  necessary  qualifications.  Indeed,  one  of  the  examples  cited  by  him  in  a 
preceding  sentence  shows  the  incorrectness  of  his  conclusion  in  this  particu- 
lar. The  statement  of  the  principle  by  Lord  Cottenham  is  more  accurate  in 
this  respect.  One  or  two  simple  examples  will  illustrate.  One  of  the  most 
familiar  applications  of  the  rule  is  the  "  wife's  equity,"  so  called,  the  secur- 
ing to  her  a  portion  of  her  own  property,  to  which  her  husband  becomes 
legally  entitled  by  the  marriage;  whenever  her  husband  or  his  assignee 
<!omes  into  a  court  of  equity  and  seeks  its  aid  to  reach  her  property,  the  court 
may,  under  certain  circumstances,  compel  the  plaintifT,  as  a  condition  of 
his  obtaining  relief,  to  secure  a  portion  of  the  property  to  the  separate  use 
of  the  wife  by  a  settlement,  although  at  law  she  has  no  right  over  it.  This 
is  sometimes  done  in  a  case  where  the  wife  herself  could,  by  means  of  her 
own  suit,  have  obtained  the  same  relief;  but  it  may  also  be  done  where, 
under  the  settled  doctrines  of  equity,  no  such  suit  could  be  maintained  by 
the  wife.  Under  statutes  against  usury,  which  make  void  all  usurious 
debts  and  obligations,  the  debtor  may  maintain  a  suit  in  equity  for  the  pur- 
pose of  procuring  the  usurious  bond  or  other  security  to  be  surrendered  up 
and  canceled;  but  this  relief  will  only  be  granted  upon  the  condition  that  the 
plaintiff  does  equity  by  repaying  to  his  creditor  the  amount  which  was 
actually  loaned  upon  the  security.  In  this  instance,  by  the  operation  of  the 
principle,  the  defendant  obtains  a  relief  which  he  could  not  possibly  have 
obtained  in  any  other  manner;  for  if  he  had  sued  the  debtor  either  at  law 
or   in   equity   to   enforce   the   security   and  recover   the   debt,   the   defense   of 

(b)  This  portion  of  the  text  is  ant  may  be  conditioned  on  the  en- 
quoted  in  De  Walsh  v.  Braman,  160  forcement  of  a  claim  or  equity  held 
111.  415,  43  N.  E.  597.  The  text  is  by  the  defendant  which,  by  reason  of 
cited  in  Farmers'  Loan  &  T.  Co.  v.  the  statute  of  limitations  or  other- 
Denver,  L.  &  G.  R.  Co.,  126  Fed.  wise,  the  latter  could  not  enforce  in 
46,  51,  citing  also  many  cases  and  any  other  way. 
holding  that  relief  to  the  complain- 

Vol.  1  —  41 


§    387  EQUITY    JUaiSPBUDENCE.  642 

§  387.  Finally,  the  principle  will  not  apply  so  as  to 
compel  the  plaintiff  to  do  equity,  where  the  relief  sought 
by  the  plaintiff,  and  the  equitable  right  or  relief  secured 
or  awarded  to  the  defendant,  belong  to  or  grow  out  of 
two  entirely  separate  and  distinct  matters.  The  true 
meaning  of  the  rule  in  this  respect  is,  that  the  equitable 
right  or  relief  secured  to  or  conferred  upon  the  defendant 
must  be  something  connected  with  the  subject-matter  of 
the  very  suit  or  controversy  for  the  proper  decision  of 
which  the  principle  is  invoked.  Or,  to  state  the  same  doc- 
trine in  more  detailed  and  particular  terms,  ''  the  rule  is 
applied  where  the  adverse  equity  to  be  secured  or  awarded 
to  the  defendant  grows  out  of  the  very  controversy  before 
the  court,  or  out  of  such  transactions  as  the  record  shows 
to  be  a  part  of  its  history,  or  where  it  is  so  connected  with 
the  cause  in  litigation  as  to  be  presented  in  the  pleadings 
and  proofs,  with  full  opportunity  afforded  to  the  party 
thus  recriminated  to  explain  or  refute  the  charges."  ^*    If 

usury  would  be  a  complete  bar.  Again,  in  many  of  the  states  a  tax-payer 
may  maintain  a  suit  in  equity  and  restrain  the  collecting  officer  from  en- 
forcing payment  of  illegal  taxes;  but  the  relief  of  injunction  will  not  be 
granted  unless  the  plaintiff  pays  in  full  all  that  part  of  the  tax  assessed 
against  him  which  is  legal.  Here  also  the  defendant  obtains  a  relief, 
under  the  operation  of  the  principle,  which  he  could  obtain  from  the  court 
of  equity  in  no  other  manner;  for  the  court  would  not  sustain  a  suit  in 
equity  brought  by  the  collecting  officer  to  enforce  payment  of  the  tax;  his 
only  affirmative  remedy  would  be  either  at  law  or  by  special  statutory 
proceedings. 

1  Corastock  V.  Johnson,  46  N.  Y.  615.  Plaintiff  and  defendants  were  own- 
ers of  adjoining  mills.  Plaintiff  had  the  right  to  draw  water  for  his  mill 
from  a  dam  belonging  to  defendants.  Plaintiff,  without  any  right,  as  it 
was  held,  erected  a  buzz-saw  on  an  open  space  in  front  of  defendants'  mill, 
and  propelled  it  by  water  from  defendants'  dam.  Defendants  thereupon  shut 
off  all  the  water  supply  to  the  plaintiff's  works,  that  to  the  mill  as  well  a3 
that  for  the  saw.  Plaintiff  brought  a  suit  to  restrain  them  from  depriving 
liim  of  the  water.    He  was  held  to  be  entitled  to  the  relief,  but  only  upon  con- 

(a)    The  text  is  cited  in  Mahoney  4  Pac.  49,  55;   John  Amsfield  Co.  v. 

V.  Bostwick,  96  Cal.  53,  30  Pac.  1020,  Edward   B.   Grossman   &  Co.,   98   111. 

31  Am.  St.  Rep.  175;  City  of  Chicago  App.  180;  Brunner  v.  Warner,  (Tenn, 

V.  Union  Stock  Yards  &  Transit  Co.,  Ch,  App.),   52   S.   W.  068.     See  also 

104  111.  224,  45  N.  E.  430,  35  L.  K.  A.  Bethea   v.   Bethea,    110   Ala.   205,   22 

281;    VVcIIb  v.   Francis,   7    Colo.   390,  South.  561. 


643  HE   WHO    SEEKS   EQUITY   MUST   DO   EQUITY.  §    388- 

the  conduct  of  the  plaintiff,  growing  out  of  matters  entirely 
distinct  and  unconnected  with  those  embraced  within  the 
suit,  can  affect  his  right  to  obtain  relief  which  would  be 
otherwise  proper,  it  must  be  by;  virtue  of  another  equitable 
maxim,  He  who  comes  into  a  court  of  equity  must  come 
with  clean  hands. 

§  388.  Is  a  General  Rule  Regulating  Equitable  Reliefs. — 
With  this  explanation  of  its  scope  and  meaning,  it  may 
be  regarded  as  a  universal  rule  governing  the  court  of 
equity  in  the  administration  of  its  remedies,  that  what- 
ever may  be  the  nature  of  the  relief  sought  by  the  plain- 
tiff, the  equitable  rights  of  the  defendant,  growing  out  of 

dition  that  he  discontinued  the  use  of  the  saw.  Church,  C.  J.,  said :  "  The 
rule  of  equity  is,  that  he  who  asks  equity  must  do  equity.  The  plaintiff  was- 
in  fault  in  using  the  buzz-saw  on  the  defendants'  premises.  It  is  said  that 
this  was  an  independent  transaction,  for  which  the  defendants  might  have 
an  action;  and  this  was  the  view  of  the  court  below.  The  rule  referred  to 
will  be  applied  where  the  adverse  equity  grows  out  of  the  very  transaction 
before  the  court,  or  out  of  such  circumstances  as  the  record  shows  to  be  a 
part  of  its  history,  or  where  it  is  so  connected  with  the  cause  in  litigation 
as  to  be  presented  in  the  pleadings  and  proofs,  Avith  full  opportunity  afforded' 
to  the  party  thus  recriminated  to  explain  or  refute  the  charges:  Tripp  v. 
Cook,  26  Wend.  143;  McDonald  v.  Neilson,  2  Cow.  139,  14  Am.  Dec.  431; 
Casler  v.  Shipman,  35  N.  Y.  533.  It  is  not  indispensable  to  the  application 
of  this  rule  that  the  fault  of  the  plaintiff  should  be  of  such  a  character  as  to 
authorize  an  independent  action  for  an  injunction  against  him."  This  case 
well  illustrates  the  point  stated  in  the  last  preceding  paragraph.  The  de- 
fendants here  obtained,  by  operation  of  the  rule,  a  relief  which  they  could 
have  obtained  from  a  court  of  equity  in  no  other  manner.  They  could  cer- 
tainly have  maintained  no  suit  in  equity  to  recover  damages  from  the 
plaintiff,  and  it  is  probable  that  the  court  would  not  have  sustained  a  suit 
brought  by  them  to  restrain  the  plaintiff's  act,  or  to  abate  it  as  a  nuisance, 
since  the  injury  was  not  irreparable.  For  additional  authorities  which  sus- 
tain the  text,  see  Hanson  v.  Keating,  4  Hare,  1,  5,  6,  per  Wigram,  V.  C. ; 
Whitaker  v.  Hall,  1  Glyn  &  J.  213;  Colvin  v.  Hartwell,  5  Clark  &  F.  484; 
Com.  Dig.,  tit.  Chancery,  3,  F,  3,  citing  Shish  v.  Foster,  1  Ves.  Sr.  88;  Mc- 
Donald V.  Neilson.  2  Cow.  139,  14  Am.  Dec.  431;  Tripp  v.  Cook,  26  Wend. 
143;  Casler  v.  Shipman,  35  X.  Y.  533;  N.  Y.  &  N.  H.  R.  R.  v.  Schuyler,  38- 
Barb.  534,  554;  Finch  v.  Finch,  10  Ohio  St.  501,  507.  In  this  case  the  court, 
say  that  the  principle  does  not  apply,  "  unless  the  mutual  equities  supposed) 
by  the  maxim  arise  out  of  the  subject-matter  of  the  suit,  and  are  such  as- 
have  a  foundation  in  established  rules  of  law  or  of  equity.  The  maxim 
invests  courts  of  equity  with  no  arbitrary  discretion."  There  are  cases  in 
which  the  court  has  disregarded  this  restrictive  feature  of  the  rule  laid  dovm 
in  the  text.     Thus,  Secrest  v.  McKenna,  1  Strob.  Eq.  356^  was  a  suit  for  the 


§    388  EQUITY   JUEISPRUDENCE.  644 

or  intimately  connected  with  the  subject  of  the  controversy 
in  question,  will  be  protected;  and  for  this  purpose  the 
plaintiff  will  be  required,  as  a  condition  to  his  obtaining 
the  relief  which  he  asks,  to  acknowledge,  admit,  provide 
for,  secure,  or  allow  whatever  equitable  rights  (if  any)  the 
defendant  may  have,  and  to  that  end  the  court  will,  by  its 
affirmative  decree,  award  to  the  defendant  whatever  re- 
liefs may  be  necessary  in  order  to  protect  and  enforce 
"those  rights.  This  principle  is  not  confined  to  any  particu- 
lar kind  of  equitable  rights  and  remedies,  but  pervades  the 
entire  equity  jurisprudence,  so  far  as  it  is  concerned  with 
the   administration  of  equitable  remedies/  * 

specific  performance  of  a  contract  for  the  sale  of  land,  brought  by  the  vendee. 
The  plaintiff  had  fully  paid  the  purchase  price,  and  was  clearly  entitled  to 
Ihe  usual  decree  for  a  conveyance,  so  far  as  the  agreement  itself  was  con- 
■cerned.  But  defendant  had  become  a  surety  on  the  official  bond  of  the  plain- 
tiff as  a  sheriff,  and,  as  such  surety,  had  incurred  liabilities  on  behalf  of  the 
plaintiff,  which  still  remained  undischarged.  On  this  ground  the  defendant 
had  refused  to  fulfill  his  agreement  by  conveying  the  land.  The  court  sus- 
tained the  defendant's  contention,  and  refused  to  grant  the  relief  sought  by 
the  plaintiff,  expressly  on  account  of  the  plaintiff's  pecuniary  liability  aris- 
ing from  the  sheriff's  bond,  saying:  "  It  is  a  settled  principle  of  the  court  not 
to  grant  merely  equitable  relief  without  requiring  the  party  asking  it  to  do 
equity  himself, —  to  do  what  is  morally  right, —  of  which  many  examples 
anight  be  given."  This  decision,  plainly,  cannot  be  sustained,  in  view  of  the 
overwhelming  weight  of  opposing  authority,  English  and  American.  See  also 
Walling  V.  Aiken,  1  McMull.  Ch.  1. 

1  Com.  Dig.,  tit.  Chancery,  3,  F,  3,  citing  Towers  v.  Davys,  1  Vern.  480 ; 
Bradburne  v.  Amand,  2  Carth.  87;  Smithson  v.  Thompson,  1  Atk.  520; 
Shish  v.  Foster,  1  Ves.  Sr.  88;  Shuttleworth  v.  Laycock,  1  Vern.  244;  Kirk- 
ham  V.  Smith,  1  Ves.  Sr.  258;  Anonymous,  2  Show.  282;  Lady  Elibank  v. 
Montolieu,  5  Ves.  737;  Murray  v.  Lord  Elibank,  10  Ves.  84,  1  Lead.  Cas.  Eq., 
4th  Am.  ed.,  623,  639,  670,  and  notes;  Peacock  v.  Evans,  16  Ves.  512;  Fan- 
ning V.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283;  Lanning  v.  Smith.  1  Para. 
Cas.  10;  Corby  v.  Bpan,  44  Mo.  379;  Richardson  v.  Linney,  7  B.  Mon.  574; 
Sporrer  v.  Eiflcr,  1  Iloisk.  03G;  Mumford  v.  Am.  Life  Ins.  &  T.  Co.,  4  N.  Y. 
403,  483;  N.  Y.  &  Harlem  R.  R.  v.  Mayor,  etc.,  1  Hilt.  562,  587;  Linden  v. 
Hepburn,  3  Sand.  6G8;  Creath's  Adm'r  v.  Sims,  5  How.  192,  204;  Lewis  v. 
Baird,  3  McLean,  56,  83. 

(a)    The   text   is   quoted   with   ap-  cited  in  Price  v.  Stratton    (Fla.),  33 

(proval  in  Chancy  v.  Coleman,  77  Tex.  South.  644;  Swope  v.  Missouri  Trust 

100,   13  S.  W.  850;   State  v.  Snyder,  Co.,  26  Tex,  Civ.  App.  133,  62  S.  W. 

«6    Tex.    687,    18    S.    W.    100;    and  947. 


645  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    38^ 

§  389.  Illustrations :  The  Wife's  Equity. —  Having  thus  ex- 
plained the  principle  in  its  generality,  I  shall  now,  by  way 
of  illustration,  state  some  of  the  instances  in  which  it  has. 
been  applied.  The  most  common  and  striking  instance^ 
at  all  events  in  England,  is  the  ' '  wife 's  equity, ' '  so  called. 
By  the  common  law  the  husband  became  absolute  owner 
of  all  the  wife's  moneys,  goods,  and  chattels,  and  things 
in  action  which  he  had  reduced  to  possession,  and  estates 
for  years,  and  acquired  a  life  interest  in  all  her  freehold 
estates,  and  was  entitled  to  their  rents  and  profits.  The 
only  mode  of  securing  any  of  her  property  to  her  own  use 
during  the  marriage  was  by  a  marriage  settlement.  Courts 
of  equity  have,  from  a  very  early  period,  provided  the 
wife  a  remedy  against  these  harsh  doctrines  of  the  common 
law,  where  no  proper  settlement  had  already  been  made 
by  the  parties,  by  giving  her  a  right  to  a  provision  out  of 
her  own  property,  when  the  circumstances  were  such  that 
the  principle,  he  who  seeks  equity  muct  do  equity,  could  be 
applied;  and  this  right  is  knovtn  as  her  "  equity  to  a  set- 
tlement."^ This  right  of  the  wife  was  first  recognized  in 
cases  where  the  husband  himself,  or  his  assignee  or  cred- 
itor, or  some  other  party  claiming  under  or  through  him, 
resorted  to  the  court  as  plaintiff,  and  sought  its  aid  to  en- 
force the  husband's  legal  interest,  and  thus  to  obtain  pos- 
session of  property  belonging  to  the  wife.  Avowedly  act- 
ing upon  the  rule  under  discussion,  the  court  established  the 
doctrine  that  it  would  always  require,  as  a  condition  of 
its  granting  the  relief,  that  an  adequate  part  of  the  prop- 
erty should  be  secured  to  the  wife  by  a  settlement.^  Sub- 
sequently the  court  took  a  further  step,  and  allows  the  wife, 
as  plaintiff,  under  proper  circumstances,  to  assert  her  equi- 
table right  by  a  suit  in  her  own  name.^    It  may  therefore  be 

1  See  Jewson  v.  Moulson,  2  Atk.  417,  per  Lord  Hardwicke;  and  Sturgis 
T.  Champneys,  5  Mylne  &  C.  101,  105,  per  Lord  Cottenham. 

2Bosvil  V.  Brander,  1  P.  Wms.  459. 

SLady  Elibank  v.  Montolieu,  5  Ves.  737;  Sturgis  v.  Champneys,  5  Mylne 
ft  C.  101,  105;  Hanson  v.  Keating,  4  Hare,  1,  6;  Eedes  v.  Eedea,  11  Sim. 
669;  Osborn  v.  Morgan,  9  Hare,  432,  434. 


§    389  EQUITY    JURISPRUDENCE.  646 

regarded  as  the  established  general  rule  of  equity,  whether 
the  wife  is  plaintiif  suing  on  her  own  account,  or  the  hus- 
band or  some  other  party  claiming  under  him  is  the  plaintiff 
suing  to  reach  the  property,  if  the  wife 's  property  is  within 
•the  reach  of  the  court,  as  if  it  is  vested  in  trustees,  or  has 
been  paid  into  court,  or  is  in  any  other  situation  which 
brings  it  within  the  control  of  the  court,  it  will  not  be  per- 
mitted to  be  removed  out  of  that  jurisdiction  and  control 
imtil  an  adequate  provision  is  made  for  the  wife,  unless 
she  has  already  been  sufficiently  provided  for,  or  on 
her  personal  examination  she  waives  her  right.*  This 
same  rule  was  adopted  and  occasionally  enforced  in  many 
of  the  American  states,  at  a  time  when  the  common-law 
<ioctrines  concerning  the  property  relations  between  hus- 
band and  wife  were  still  unaltered,  that  is,  prior  to  the 
modem  legislation  as  to  married  women's  property.^  The 
importance  of  the  rule,  however,  has  been  greatly  lessened 
in  England,  and  the  rule  itself  has  certainly  become  entirely 

4  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  623,  639,  670^  and  notes;  Macauley  v. 
Philips,  4  Ves.  19;  Burdon  v.  Dean,  2  Ves.  607;  Oswell  v.  Probert,  2  Ves. 
€80;  Turner's  Case,  1  Vern.  7,  and  notes;  Ball  v.  Montgomery,  4  Brown  Ch. 
338;  Pryor  v.  Hill,  4  Brown  Ch.  139;  Brown  v.  Clark,  3  Ves.  166;  Freeman 
■V.  Parsley,  3  Ves.  421;  Mitford  v.  Mitford,  9  Ves.  87;  Wright  v.  Morley,  11 
Ves.  12;  Elliott  v.  Cordell,  5  Madd.  149;  Vaughan  v.  Buck,  13  Sim.  404; 
Stanton  v.  Hall,  2  Russ.  &  M.  175;  Wilkinson  v.  Charlesworth,  10  Beav.  324; 
Tidd  V.  Lister,  10  Hare,  140,  3  De  Gex,  M.  &  G.  857,  870;  Ex  parte  Norton,  8 
De  Gex,  M.  &  G.  258;  Cleaves  v.  Paine,  1  De  Gex,  J.  &  S.  87;  Spirett  v. 
Willows,  3  De  Gex,  J.  &  S.  293,  L.  R.  1  Ch.  520,  522 ;  Coster  t.  Coster,  9  Sim. 
597;  Bagshaw  v.  Winter,  5  De  Gex  &  S.  466;  Ex  parte  Pugh,  1  Drew.  202; 
Napier  v.  Napier,  1  Dru.  &  War.  407;  Scott  v.  Spashett,  3  Macn.  &  G.  599; 
Gilchrist  v.  Cator,  1  De  Gex  &  S.  188 ;  Dunkley  v.  Dunldey,  2  De  Gex,  M.  &  G. 
390,  396;  Barrow  v.  Barrow,  5  De  Gex,  M.  &  G.  782;  In  re  Ford,  32  Beav.  621; 
Marshall  v.  Fowler,  16  Beav.  249 ;  Carter  v.  Taggart,  1  De  Gex,  M.  &  G.  286. 

5  Kenny  v.  Udall,  5  Johns.  Ch.  464;  Ilaviland  v.  Bloom,  6  Johns.  Ch.  178, 
180;  Davis  v.  Newton,  6  Met.  544;  Howard  v.  Moffatt,  2  Johns.  Ch.  206,  208; 
Glen  V.  FislieT,  6  Johns.  Ch.  33,  30,  10  Am.  Dec.  310;  Page  v.  Estes,  19  Pick. 
269,  271  ;  Gassett  v.  Grout,  4  Mot.  480,  489;  Gardner  v.  Hooper,  3  Gray,  398; 
Durr  v.  Bowyer,  2  McCord  Kq.  368,  372;  Duvall  v.  Farmers'  Bank,  4  Gill  &  J. 
283,  290,  23  Am.  Dec.  558;  Grovcrman  v.  DifTenderder,  11  Gill  &  J.  15,  22; 
Tucker  v.  Andrews,  13  Me.  124,  128;  Chase  v.  Palmer,  25  Me.  342,  348;  Short 
T.  Moore,  10  Vt.  446,  451;  Barron  v.  Barron,  24  Vt.  375;  Smith  v.  Kane,  2 
Paige,  303. 


647  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    390 

useless  and  obselete  in  a  great  majority,  if  not  indeed  in  all, 
of  the  states,  from  the  effect  of  modern  legislation.  Re- 
cent statutes  in  nearly  all,  if  not  quite  all,  the  states  have 
deprived  the  husband  of  all  interest  in  his  wife's  property 
during  the  marriage,  have  secured  to  her  a  perfect  title  in 
it,  have  removed  it  from  all  claims  of  her  husband  and  of 
his  creditors,  have  placed  it  under  her  exclusive  control 
and  separate  use,  and  have  generally  given  her  full  power 
or  disposition  over  it.®  It  is  perfectly  obvious,  therefore, 
that  no  circumstances  could  possibly  arise  under  which 
the  rule  could  be  invoked  and  enforced  on  behalf  of  a  mar- 
ried woman,  in  order  to  secure  her  own  property,  since  it 
is  already  more  completely  secured  to  her  by  the  statutes, 
and  neither  the  husband,  nor  his  assignee,  nor  his  creditors, 
could  ever  maintain  a  suit  in  equity  for  the  purpose  of 
reaching  it.* 

§  390.  Equitable  Estoppel. —  As  another  example  of  the 
application  of  the  principle:  If  the  owner  of  an  estate 
stands  by  and  suffers  another  person,  who  is  ignorant  of 
his  title  or  supposes  himself  to  be  entitled,  to  go  on  and 
expend  money  upon  the  estate,  either  by  erecting  buildings 
or  by  making  other  improvements,  a  court  of  equity  will 
compel  such  owner,  when  he  afterwards  comes  into  it  to 
assert  his  title,  to  indemnify  the  one  who  made  the  ex- 
penditure, either  by  making  a  pecuniary  compensation,  or 
in  some  cases,  if  the  expenditure  were  by  a  lessee  under  a 
defective  lease,  by  confirming  and  establishing  the  leasehold 
interest.^  ■ 

6  statutes  substantially  to  the  effect  described  in  the  text  are  found  in  the 
following  states:  New  York,  California,  Texas,  Louisiana,  Illinois,  Iowa, 
Kansas,  Massachusetts,  Michigan,  Nebraska,  New  Hampshire,  Maine,  Wis- 
consin, Alabama,  Florida,  Kentucky,  Maryland,  Minnesota,  New  Jersey,  Ore- 
gon, Ohio,  Pennsylvania,  Rhode  Island,  Tennessee,  Vermont,  and  without  doubt 
in  others. 

1  If  the  owner  should  resort  to  a  court  of  law  and  bring  an  action  of  eject- 
ment, a  court  of  equity,  at  the  suit  of  the  party  making  the  expenditure,  would 

§  389,    (a)  For  a  discussion  more  §  390,    (a)  For  a  similar  applica- 

in  detail  of  the  wife's  equity,  see  tion  see  Broumel  v.  White,  87  Md. 
'§§  1114-1118.  521,  39  Atl.  1047.     See  also  §  818. 


§    391  EQUITY    JURISPRUDENCE.  648> 

§  391.  Usury, —  Another  remarkable  application  of  the 
principle  is  seen  in  the  action  of  the  courts  towards  parties 
seeking  its  aid  under  the  statutes  against  usury.  Wherever 
the  statutes  have  made  usurious  loans  and  obligations  ab- 
solutely void,  if  a  borrower  brings  a  suit  in  equity  for  the- 
purpose  of  having  a  usurious  bond  or  other  security  sur- 
rendered up  and  canceled,  the  relief  will  be  granted  only 
upon  condition  that  the  plaintiff  himself  does  equity  by 
repaying  to  his  creditor  what  is  justly  and  in  good  faith 
due,  that  is,  the  amount  actually  advanced,  with  lawful 
interest;  unless,  indeed,  the  statute  has  gone  so  far  as  to 
expressly  prohibit  the  court  from  imposing  such  terms  as 
the  price  of  its  relief.^  ^  The  same  principle  has  been  ap- 
plied to  a  lender  seeking  the  aid  of  the  court  to  reform  a 
security  tainted  with  usury .^    The  case  is  entirely  different, 

work  out  the  equitable  principle  by  restraining  the  ejectment  until  compensa- 
tion was  made :  See  Powell  v.  Thomas,  6  Hare,  300 ;  Ramsden  v.  Dyson,  L.  R. 
1  H.  L.  Cas.  129. 

1  Fanning  v.  Dimham,  5  Johns.  Ch.  122,  142,  143,  144,  9  Am.  Dec.  283; 
Rogers  v.  Rathbun,  1  Johns.  Ch.  367;  Williams  v.  Fitzhugh,  37  N.  Y.  444; 
Ballinger  v.  Edwards,  4  Ired.  Eq.  449;  Ware  v.  Thompson,  13  N.  J.  Eq.  66; 
Ruddell  V.  Ambler,  18  Ark.  369;  Noble  v.  Walker,  32  Ala.  456;  Sporrer  v. 
Eifler,  1  Heisk.  633,  636;  Mason  v.  Gardiner,  4  Brown  Ch.  436.  An  amend- 
ment to  the  New  York  statute  took  away  from  the  court  the  power  of  impos- 
ing such  terms  upon  the  borrower.     See  Bissell  v.  Kellogg,  60  Barb.  617.'» 

2  Corby  v.  Bean,  44  Mo.  379.  By  the  statute  of  Missouri,  usurious  con- 
tracts are  not  void  in  toto,  but  only  as  to  the  excess  above  the  legal  interest.. 
Plaintiff  brought  the  suit  for  the  reformation  of  a  trust  deed,  which,  as  ap- 
peared, had  been  given  in  the  nature  of  a  mortgage,  to  secure  the  payment- 

(a)   The  text  is  quoted  in  Kemper  antee,   S.   &    B.   Ass'n,    158   Mo.    613, 

V.  Campbell,  44  Ohio  St.  210,  216,  6  59  S.  W.  1000. 

N.  E.  566;  cited  in  Scott  v.  Austin,  (*>)  Arkansas  has  a  similar  stat- 
36  Minn.  460,  32  N.  W.  89;  Ameri-  ute:  Lowe  v.  Loomis,  53  Ark.  454,14 
can  Freehold  L.  &  M.  Co.  v.  Sewell,  S.  W.  674;  and  Minnesota:  Scott  v. 
92  Ala.  163,  9  South.  143,  13  L.  R.  A.  Austin,  36  Minn.  460,  32  N.  W.  89,. 
299.  See  also  Ferguson  V.  Soden,  111  864;  Exley  v.  Berryhill,  37  Minn. 
Mo.  208,  19  S.  W.  727,  33  Am.  St.  182,  33  N.  W.  567;  Mathews  v.  Mis- 
Rep.  512;  American  Freehold  L.  &  souri,  K.  &  T.  Trust  Co.,  69  Minn. 
M.  Co.  V.  Jefferson,  69  Miss.  770,  12  318,  72  N.  W.  121;  Missouri,  K  &  T. 
South.  464,  30  Am.  St.  Rep.  587;  Co.  v.  Krumscig,  172  U.  S.  359,  19- 
Cook  V.  Patterson,  103  N.  C.  127,  9  Sup.  Ct.  182;  s.  c.  77  Fed.  32,  2» 
S.  E.  402;  Ruppel  v.  Missouri  Guar-  C.  C.  A.  1,  citing  the  author's  note. 


649  HE    WHO    SEEKS   EQUITY    MUST    DO    EQUITY.  §    392 

and  another  maxim  governs  its  decision,  when  the  lender 
sues  in  a  court  of  equity  to  enforce  a  usurious  obligation. 
The  borrower  may  set  up  the  defense  and  defeat  the  suit, 
without  repaying  any  amount.^"  The  rule  extends  to  all 
cases  where  a  party  seeks  to  have  a  contract  set  aside  and 
canceled  on  the  ground  of  its  illegality  in  violating  the  pro- 
visions of  some  statute ;  the  court  will  require  him,  as  a  con- 
dition to  its  granting  the  relief,  to  pay  what  is  really  due 
on  the  agreement,  unless  the  illegality  is  a  malum  in  se, 
or  the  statute  itself  prevents  the  imposition  of  such  terms.*  ^ 
§  392.  Other  Special  Instances. —  It  is  also  an  application 
of  the  principle,  that  where  there  has  been  some  misde- 
scription of  the  property  on  the  part  of  the  vendor,  a  court 
of  equity  will  not  decree  a  specific  performance  of  the  con- 
tract at  his  suit,  except  upon  the  terms  that  he  makes 
proper  compensation  for  the  injury  which  the  defendant 
has  sustained  from  the  misdescription.^  Indeed,  it  is  also 
by  virtue  of  the  rule,  that  the  decree  is  made  in  all  suits 
for  specific  performance  of  contracts,  the  plaintiff,  whether 
purchaser  or  vendor,  being  compelled  to  perform  his  part 
of  the  agreement  as  a  condition  to  his  obtaining  relief 
against  the  defendant.^    The  same  is  true  with  respect  to 

of  a  promissory  note  upon  which  usurious  interest  had  been  charged.  Before 
the  court  would  grant  the  relief  of  reformation,  it  compelled  the  plaintiff  to- 
produce  the  note,  and  rebate  the  usurious  interest. 

3  The  maxim,  He  who  comes  into  a  court  of  equity  must  come  with  clean 
hands,  applies  to  the  plaintiff  in  this  case:  Mason  v.  Gardiner,  4  Brown  Ch. 
437;  Union  Bank  v.  Bell,  14  Ohio  St.  200;  Kuhner  v.  Butler,  11  Iowa,  419; 
Hart  V.  Goldsmith,  1  Allen,  145;  Smith  v.  Robinson,  10  Allen,  130;  Sporrer 
V,  Eifler,  1  Heisk.  633,  636. 

4  Mumford  v.  Am.  Life  Ins.  &  T.  Co.,  4  N.  Y.  463,  483.  See,  as  to  relief  in 
case  of  illegal  transactions,  the  next  section. 

1  Hughes  V.  Jones,  3  De  Gex,  F.  &  J.  307,  315;  Knatchbull  v.  Grueber,  1 
Madd.  153 ;  Scott  v.  Hanson,  1  Russ.  &  M.  128 ;  Richardson  v.  Smith,  L.  R. 
5  Ch.  648 ;  Shaw  v.  Vincent,  64  N.  C.  690 ;  Davison  v.  Perrine,  22  N.  J,  Eq. 
87;  Foley  v.  Crow,  37  Md.  51. 

2  Hanson  v.  Keating,  4  Hare,  1,  4,  5,  per  Wigrara,  V.  C. 

(c)  See  Bigler  v.  Jack,  114  Iowa,  159;  New  England  M.  S.  Co.  v. 
667,  87  N.  W.  700.  Powell,    97    Ala.   483,    12    South.    55. 

(d)  Cited  to  this  point  in  Dean  v.  For  a  fuller  discussion  of  the  subject 
Robertson,    64    Miss.    195,    1    South.  of  this  paragraph,  see  §  937. 


§    393  EQUITY    JURISPRUDENCE.  650 

the  relief  granted  in  suits  for  redemption  brought  either 
by  a  mortgagor  or  by  a  subsequent  encumbrancer.^^  And 
where  a  trustee  had  purchased  land  in  his  own  name,  but 
really  for  the  benefit  of  the  cestui  que  trust,  and  had  paid 
the  purchase-money  with  his  own  funds,  and  was  also  a 
creditor  of  the  cestui  que  trust  for  other  advances  made 
to  or  for  him,  it  has  been  held  that  such  beneficiary  could 
not  compel  a  conveyance  from  the  trustee  to  himself,  except 
upon  pajmient  of  his  entire  indebtedness,  as  well  that  grow- 
ing out  of  this  purchase  as  that  arising  from  the  other 
advances/  ^ 

§  393.  The  following  are  some  additional  miscellaneous 
examples:  A  contract  for  the  purchase  of  lands  was  made 
in  1854,  when  the  price  was  payable  in  gold.  Subsequently, 
when  the  value  of  the  premises  had  very  greatly  increased, 
and  after  the  passage  of  the  legal-tender  act,  the  purchaser 
offered  to  pay  the  price  in  the  United  States  legal-tender 
notes,  which  were  then  much  depreciated,  and,  upon  the 
vendor 's  refusal,  brought  this  suit  to  compel  a  specific  per- 
formance. The  supreme  court  held  that,  under  these  cir- 
cumstances, the  plaintiff  was  not  entitled  to  the  relief  ex- 
cept upon  the  condition  of  paying  the  price  in  gold.'  In 
states  where  a  court  of  equity  exercises  a  jurisdiction  to 

3  Lanning  v.  Smith,  1  Pars.  Cas.  16. 

■*  Com.  Dig.,  tit.  Chancery,  3,  F,  3,  citing  Bradburne  v.  Amand,  2  Cas.  Ch. 
87;  and  see  Walling  v.  Aiken,  1  McMull.  Ch.  1,  where  a  mortgagor,  on  con- 
dition of  redeeming  the  mortgage,  was  compelled  to  pay  other  and  separate 
debts  which  he  owed  to  the  mortgagee.  I  doubt  the  correctness  of  these 
decisions.  It  is  certainly  difficult  to  reconcile  either  of  them  with  the  estab- 
lished doctrine  that  the  adverse  equities  must  both  be  connected  with  the 
subject-matter  of  the  suit. 

1  Willard  v.  Tayloe,  8  Wall.  557;  Wales  v.  Coffin,  105  Mass.  328;  McGoon 
V.  Shirk,  54  111.  408. 

(a)  See  Levi  v.  Blackwell,  35  S.  C.  tonio  &  G.  S.  R'y  Co.  v.  San  Antonio 
611,  15  S.  E.  243.  Likewise,  a  suit  &  G.  R.  Co.,  25  Tex.  Civ.  App.  167, 
cannot  be  maintained  to  have  a  deed  60  S.  W.  338;  and  in  Wells  v. 
declared  a  mortgage  unless  there  is  Francis,  7  Colo.  396,  4  Pac.  49,  56, 
an  Oder  to  redeem :  Mack  v.  Hill,  28  where,  also,  the  correctness  of  this 
Mont,  i)!),  72  Pac.  307.  extension   of   the   rule   is  questioned. 

(b)  The   text  is  cited   in   San  An- 


651  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    393 

set  aside  or  to  restrain  the  collection  of  illegal  assessments 
or  taxes,  the  relief  will  not  be  granted  unless  the  plaintiff 
pays  such  portion  of  the  tax  or  assessment  as  is  lawful 
and  justly  due.^ "  Where  a  ward,  immediately  upon  com- 
ing of  age,  transferred  all  his  property  to  his  guardian  for 
tm  inadequate  consideration,  and  released  the  guardian  from 
all  liabilities  growing  out  of  his  trust,  and  afterwards 
brought  a  suit  to  set  aside  and  cancel  such  conveyance, 
and  for  an  accounting,  the  relief  was  only  granted  upon 
the  terms  of  refunding  the  amount  thus  paid  by  the  guard- 
ian, or  giving  him  credit  for  such  amount  in  the  account- 
ing.^ Some  further  illustrations  may  be  found  in  the  foot- 
note.'' ^ 

2  Board  of  Com'rs  v.  Elston,  32  Ind.  27,  2  Am.  Rep.  327 ;  Smith  v.  Auditor- 
General,  20  Mich.  398;  Merrill  v.  Humphrey,  24  Mich.  170;  Morrison  v.  Her- 
shire,  32  Iowa,  271 ;  Dean  v.  Charlton,  23  Wis.  590,  99  Am.  Dec.  205. 

3  Richardson  v.  Linney,  7  B.  Mon.  574. 

4  An  invalid  tax  deed  of  the  plaintiff's  land  was  set  aside  as  a  cloud  upon 
his  title,  only  upon  condition  that  he  refunded  all  the  taxes  which  had  been 
advanced  or  paid  by  the  party  to  whom  the  deed  was  given:    Reed  v.  Tyler, 

(a)  People's  Nat.  Bank  v.  Marye,  equity  by  paying  what  is  equitably 
191  U.  S.  272,  24  Sup.  Ct.  68;  Koen  due:  Johnston  v.  S.  F.  Sav.  Union, 
V.  Martin,  110  La.  242,  34  South.  75  Cal.  134,  16  Pac.  753,  7  Am.  St. 
429.  But  where  the  tax  is  entirely  Rep.  129;  Loney  v.  Courtnay,  24 
invalid,  the  rule,  of  course,  does  not  Neb.  580,  39  N.  W.  616;  even  though 
apply:  Boals  v.  Bachman,  201  111.  the  statute  of  limitations  has  barred 
340,  66  N.  E.  336.  the  debt:    Booth  v.  Haskins,  75  Cal. 

See,       on       this       subject,       Pom.  271,  17  Pac.  225;  De  Cazara  v.  Orena, 

Equit.    Remedies,    chapter    "  Injunc-  80  Cal.  132,  22  Pac.  74;  Hall  v.  Ar- 

tion  against  Taxation."  not,  80  Cal.   348,  22   Pac.  200.     The 

(b)  It  has  been  held  (citing  the  same  is  true  of  relief  against  other 
editor's  note  to  the  second  edition),  void  judicial  sales:  Galveston,  etc., 
that  relief  to  the  plaintiff  may  be  R.  R.  Co.  v.  Blakeney,  73  Tex.  180, 
conditioned  on  the  enforcement  of  a  II  S.  W.  174;  Robertson  v.  Bradford, 
claim  held  by  the  defendant  which  is  73  Ala.  116.  A  mortgagor  who  seeks 
barred  by  the  statute  of  limitations:  to  cancel  a  mortgage  on  his  home- 
Farmers'  Loan  &  T.  Co.  v.  Denver,  stead  as  a  cloud  on  his  title,  on  the 
L.  &  G.  R.  R.  Co.,  126  Fed.  46.  This  general  ground  of  defects  in  its  exe- 
is  in  accordance  with  that  phase  of  cution  and  acknowledgment,  must 
the  principle  which  is  explained  ante,  offer  to  do  equity  by  refunding  the 
end  of  §  386.  A  mortgagor  seeking  mortgage  money  with  lawful  interest : 
to  quiet  title  against  an  illegal  sale  Grider  v.  American  Freehold  L.  &  M. 
under  the  mortgage  must  offer  to  do  Co.,   99   Ala.  281,   12   South.   775,   42 


§  394 


EQUITY    JURISPRUDENCE. 


652 


§  394.  Is  the  Source  of  Certain  Equitable  Doctrines. —  Thus 
far  I  have  discussed  the  principle  in  the  view  taken  of  it 
by  the  great  majority  of  judicial  opinions,  namely,  as  a 
universal  rule  guiding  the  court  of  equity  in  its  administra- 
tion of  every  kind  of  relief,  and  to  be  applied  in  practice 


56  111.  288. c  A  co-surety,  asking  to  be  relieved  from  a  judgment  against  him 
for  the  whole  demand  secured,  can  only  obtain  the  relief  by  paying  his  own. 
contributory  portion  of  the  debt:  Creed  v.  Scruggs,  1  Heisk.  590.  A  widow 
suing  for  her  dower  must  account  for  the  use,  rent,  and  profits  of  the  land 
which  she  has  occupied  in  excess  of  her  third:  McLaughlin  v.  McLaughlin, 
20  N.  J.  Eq.  190.     On  the  other  hand,  if  the  heir  sues  to  set  aside  his  deed 


Am.  St.  Eep.  58.  One  who  seeks  the 
reformation  of  a  deed  in  his  own 
favor  will  be  denied  relief,  unless  he 
is  willing  that  other  mistakes  in  the 
deed  be  reformed  in  favor  of  the  de- 
fendants: Morisey  v.  Swinson,  104 
N.  C.  555,  10  S.  E.  754.  If  a  hus- 
band, after  voluntarily  conveying 
property  to  his  wife,  again  conveys 
the  same  property  in  trust  to  secure 
money  advanced  at  his  request  to  dis- 
charge an  existing  lien  against  the 
property,  the  deed  of  trust  cannot  be 
set  aside  as  a  cloud  on  the  wife's 
title,  unless  the  money  so  advanced 
is  repaid:  Martin  v.  Martin,  104X11. 
640,  45  N.  E.  1007,  56  Am.  St.  Rep. 
219.  In  Interstate  Sav.  &  L.  Ass'n 
V.  Badgley,  115  Fed.  390,  the  maxim 
was  applied,  and  the  court  held  that 
a  complaint  by  a  savings  and  loan 
association  to  foreclose  a  mortgage 
was  without  equity,  where  it  ap- 
peared tiiat  in  order  to  procure  the 
loan  the  mortgagor  was  obliged  to 
Kubscribe  for  stock,  and  that  the 
willulrawal  value  of  the  stock,  plus 
the  iirciniums  paid  by  the  mortgagor, 
etc.,  more  than  equaled  the  face  of 
the  loan,  and  that  the  interest  paid 
on  the  average  balance  dun  on  the  loan 
juiiountcd  to  about  twelve  per  cent. 
See  the  following  cases  for  miscel- 
laneous illustrations:  Neal  v.  llriggs, 
110  Fed.  477;   Hobhs  v.  Nashville,  C. 


&  St.  L.  R'y  Co.,  122  Ala.  602,  82 
Am.  St.  Rep.  103,  26  South.  739; 
Taylor  v.  Dwyer,  131  Ala,  91,  32 
South.  509;  De  Walsh  v.  Braman, 
160  111.  415,  43  N.  E.  597;  Wicks  v. 
Dean,  103  Ky.  69,  44  S.  W.  397; 
Bunnell  v.  Bunnell,  23  Ky,  L.  Rep. 
800,  64  S,  W.  420;  Anderson  v.  Mc- 
Neal,  (Miss.),  34  South,  1;  Trenton 
Pass.  R'y  Co.  v.  Wilson,  (N,  J.),  40 
Atl.  597;  San  Antonio  &  A.  P.  R'y 
Co.  V.  Gurley,  (Tex.), 47  S,  W.  513; 
Harrison  v.  Manson,  95  Va.  593,  29 
S.  E.  420;  Ensign  v.  Batterson, 
(Conn.),  36  Atl.  51.  For  the  im- 
portant application  of  the  maxim  to 
parties  seeking  rescission  or  cancel- 
lation of  transactions  on  the  ground 
of  fraud,  mistake,  etc.,  and  the  equi- 
table theory  of  restoring  all  the  par- 
ties to  their  original  position,  see 
§  910,  and  Pom.  Equit.  Remedies, 
chapter  on  "  Cancellation."  For  its- 
application  to  the  cancellation  of 
deeds,  etc.,  of  insane  persons,  see 
§  946.  For  its  application  in  behalf 
of  persons  holding  under  defective 
title  who  in  good  faith  have  made 
improvements,  see  §  1241,  note. 

(c)  See  also  Hickman  v,  Kempner, 
35  Ark.  505;  Alexander  v,  Merrick, 
121  HI.  606,  13  N.  E.  190;  Peckham 
V.  Millikan,  99  Ind.  352;  Steuart  V. 
Meyer,  54  Md.  464. 


653  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    395 

according  to  the  circumstances  of  the  particular  case  be- 
fore the  court  for  decision.  In  this  aspect  of  the  principle 
it  is  not  regarded  as  the  source  of  any  special  doctrine  of 
the  equity  jurisprudence,  nor  as  the  foundation  of  any 
special  equitable  interest  or  primary  right.  There  is.  how- 
ever, another  phase  of  the  principle ;  it  may  be  looked  upon 
in  another  light.  It  is  not  wholly  a  rule  for  the  guidance 
of  the  equity  judge  in  measuring  out  and  apportioning 
reliefs  among  litigants.  It  has  exercised  a  molding  influence 
in.  the  development  of  important  branches  of  the  equity 
jurisprudence ;  certain  doctrines  are  plainly  derived  from  it 
as  their  chief,  though  not  perhaps  their  only,  source.  The 
full  scope  and  effect  of  such  doctrines  can  only  be  under- 
stood by  a  clear  perception  of  the  relations  which  connect 
them  with  this  their  common  origin.  I  shall  therefore  con- 
clude the  discussion  of  the  present  section  by  a  brief  men- 
tion of  the  doctrines  which  are  thus,  as  it  seems  to  me, 
directly  referable  to  the  principle  that  he  who  seeks  equity 
must  do  equity. 

§  395.  Of  Election. —  The  relation  which  plainly  connects 
all  these  doctrines  with  the  principle  in  question  is  the  fact 

to  the  widow,  and  for  an  accounting,  he  must  allow  to  her  one-third  of  the 
income  in  respect  of  her  dower  right:  Ames  v.  Ames,  1  Cin.  Rep.  559.  A 
plaintiff  suing  in  equity  for  a  partition  must  contribute  his  proportion  of  a 
mortgage  on  the  land  which  had  been  paid  off  by  the  defendant:  Campbell  v. 
Campbell,  21  Mich.  438;  and  see  Conistock  v.  Johnson,  46  N.  Y.  615  (ante, 
§  387,  in  note)  ;  Phillips  v.  Phillips,  50  Mo.  603;  Kinney  v.  Con.  Virginia  M. 
Co.,  4  Saw.  383 ;  Boskowitz  v.  Davis,  12  Nev.  446 ;  Scammon  v.  Kimball,  5 
Biss.  431;  Anderson  v.  Little,  26  N.  J.  Eq.  144;  Lohman  v.  Crouch,  19  Gratt. 
331;  Lanning  v.  Smith,  1  Pars.  Cas.  16.  It  is  held  that  the  principle  also 
applies  to  a  defendant  who  sets  up  an  afRrmative  equitable  defense  claiming 
some  afTirmative  relief,  since  he  is  then  in  exactly  the  same  position  as  a 
plaintiff:  See  Tongue  v.  Nutwell,  31  Md.  302. d  This  must  be  the  true  limita- 
tion of  the  principle  in  its  application  to  defendants;  it  certainly  does  not 
and  cannot  apply  to  defendants  generally,  who  merely  seek  to  defeat  the 
plaintiff's  demand,  and  ask  no  affirmative  relief  for  themselves,  either  directly 
or  indirectly.  For  example,  the  borrower,  when  sued  upon  a  usurious  obliga- 
tion, may  set  up  the  defense  of  usury,  without  paying  anything. 

(d)  In  Charleston  &  W.  C.  R'y  Co.       Rep.  17,  30  S.  E.  972,  it  is  held  that 
V.   Hughes,    105    Ga.    1,   70   Am.    St.       the  maxim  applies  to  an  intervener. 


§    395  EQUITY    JURISPRUDENCE.  654 

that  the  equitable  right  or  interest  of  one  party,  recognized 
and  protected  by  each  of  them,  always  grows  out  of,  or  is 
necessaril}'  connected  with,  the  recognition  and  maintenance 
of  the  equitable  right  or  interest  of  another  party  arising 
from  the  same  transaction  or  subject-matter.  In  other 
words,  the  equity  of  one  exists  by  the  operation  of  the  doc- 
trine only  because  the  equity  of  another  is  admitted  and 
provided  for.  The  doctrine  itself  is  thus  based  upon  the 
preservation  of  reciprocal  or  correlative  equities.  The  first 
of  the  doctrines  which  I  shall  notice  is  that  of  election. 
This  doctrine  involves  the  notion  that  no  man  can  claim  in- 
consistent rights  with  regard  to  the  same  subject,  and  that 
any  one  who  asserts  an  interest  under  an  instrument  is 
bound  to  give  full  effect  to  that  instrument ;  he  cannot  both 
accept  and  reject  it,  or  avail  himself  of  its  benefits  as  to  a 
part,  and  defeat  its  provisions  as  to  other  parts.  Election 
then  originates  in  inconsistent  or  alternative  donations, — 
two  gifts,  with  the  intention,  express  or  implied,  that  one 
shall  be  a  substitute  for  the  other.  The  donee  is  entitled, 
not  to  both,  but  to  the  choice  of  either.  The  doctrine  is 
applied  under  two  somewhat  differing  states  of  circum- 
stances, but  the  principle  is  the  same  in  each.  If  the  indi- 
vidual to  whom,  by  an  instrument  of  donation,  a  benefit  is 
offered  possesses  a  previous  claim  on  the  donor,  and  an  in- 
tention appears  that  he  shall  not  both  receive  the  donation 
and  enforce  the  claim,  he  is  required  by  the  doctrine  to 
elect  between  his  original  and  his  substituted  rights ;  the  gift 
being  designed  as  a  satisfaction  of  the  claim,  he  cannot 
accept  the  former  without  renouncing  the  latter.  In  the- 
second  case,  the  owner  of  an  estate  having,  in  an  instrument 
of  donation,  applied  to  the  property  of  another  expressions 
which,  were  that  property  his  own,  would  amount  to  an 
effectual  disposition  of  it  to  a  third  person,  and  having  by 
the  same  instrument  disposed  of  a  portion  of  his  own 
estate  in  favor  of  the  proprietor  whose  rights  he  assumed, 
the  doctrine  imposes  upon  that  proprietor  the  duty  of  elect- 


655  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §    396 

ing  either  to  relinquish  the  benefit  conferred  upon  him  by 
the  instrument,  if  he  asserts  his  own  inconsistent  proprie- 
tary rights,  or  if  he  accepts  that  benefit,  to  complete  the 
intended  disposition  by  conveying,  in  conformity  to  it,  that 
portion  of  his  own  property  wliich  it  purports  to  affect.^ 
It  is  very  evident  that  this  doctrine  is  based  upon  the  princi- 
ple that  the  party  who,  under  such  circumstances,  asserts 
his  equitable  claim  to  one  of  his  rights  must  also  do  equity 
by  relinquishing  the  other  to  the  persons  who  in  that  case 
are  entitled  to  it,  and  to  that  end  he  is  compelled  to  make 
an  election  between  the  two. 

§  396.  Of  Marshaling. — The  second  doctrine  which  I  shall 
notice  is  that  known  as  the  marshaling  of  securities.  *'  If 
a  person  who  has  two  real  estates  mortgages  both  to  one 
person,  and  afterwards  only  one  estate  to  a  second  mort- 
gagee, the  court,  in  order  to  relieve  the  second  mortgagee, 
has  directed  the  first  to  take  his  satisfaction  out  of  that 
estate  only  which  is  not  in  mortgage  of  the  second  mort- 
gagee, if  that  is  sufficient  to  satisfy  the  first  mortgage,  in 
order  to  make  room  for  the  second  mortgage."^  The 
same  rule  applies  wherever  one  has  any  lien  or  security  on 
two  funds,  and  another  has  a  subsequent  lien  on  only  one  of 
them.  This  doctrine  is  plainly  referable  to  the  principle. 
The  holder  of  the  security  on  two  funds  is  compelled  to 
shape  his  own  remedy,  so  as  to  preserve,  if  possible,  the 
equity  of  the  one  whose  lien  extends  to  but  one  fund.*  In 
fact,  the  whole  theory  with  respect  to  the  marshaling  of  as- 

§  395,  iSnell's  Equity,  178,  179;  Gretton  v.  Haward,  1  Swanst.  433,  and 
note;  Noys  v.  Mordaunt,  2  Vern.  581;  Streatfield  v.  Streatfield,  Cas.  t.  Talbot, 
176,  1  Lead.  Cas.  Eq.  503,  510,  541. 

§  396,  iPer  Lord  Hardwieke,  in  Lanoy  v.  Duke  of  Athol,  2  Atk.  446; 
Hughes  V.  Williams,  3  Macn.  &  G.  690;  Tidd  v.  Lister,  10  Hare,  157,  3  De  Gex, 
M.  &  G.  857;  Heyman  v.  Dubois,  L.  R.  13  Eq.  158;  Evertson  v.  Booth,  19 
Johns.  486;  Dorr  v.  Shaw,  4  Johns.  Ch.  17;  Kendall  v.  New  England  Co.,  13 
Conn.  384;  House  v.  Thompson,  3  Head,  512. 

(a)  The  text  is  quoted  in  Boone  Bank  of  Auburn,  68  N.  Y.  Suppl.  68, 
V.  Clark,  129  111.  466,  21  N.  E.  850,  57  App.  Div.  468,  affirmed,  171  N.  Y,. 
6  L.  E.  A.  276;    Breed  v.  National       648,  63  N.  E.  1115. 


§    397  EQUITY   JURISPRUDENCE.  656 

sets  seems  to  be  derived,  in  part  at  least,  from  the  same 
source,  A  few  other  doctrines  might,  I  think,  be  specified  as 
thus  related  by  a  common  descent ;  but  enough  has  already 
been  said  to  show  the  great  importance  of  the  principle.  He 
who  seeks  equity  must  do  equity,  both  as  a  practical  rule 
governing  the  administration  of  remedies,  and  as  the  germ 
of  equitable  doctrines. 


SECTION  IV. 

HE  WHO  COMES  INTO  EQUITY  MUST  COME  WITH  CLEAN  HANDS. 

ANALYSIS. 

§  397.  General  meaning  of  this  principle. 

§  398.  Is  based  upon  conscience  and  good  faith. 

§  399.  Limitations  upon  it. 

$§  400-403.  Illustrations  of  its  application. 

§  400.  In  specific  performance. 

§  401.  In  cases  of  fraud. 

§  402.  In  cases  of  illegality. 

§403.  Limitation  in  cases  of  fraud  and  illegality;  parties  not  in  pari 

delicto. 

§  404.  Conclusion. 

§  397.  Its  General  Meaning." —  This  maxim  is  sometimes 
expressed  in  the  form,  He  that  hath  committed  iniquity 
shall  not  have  equity.  Like  the  one  described  in  the  preced- 
ing section,  it  is  not,  in  its  ordinary  operation  and  effect, 
the  foundation  and  source  of  any  equitable  estate  or  interest, 
nor  of  any  distinctive  doctrine  of  the  equity  jurisprudence ; 
it  is  rather  a  universal  rule  guiding  and  regulating  the 
action  of  equity  courts  in  their  interposition  on  behalf  of 
suitors  for  any  and  every  purpose,  and  in  their  administra- 
tion of  any  and  every  species  of  relief.  Resembling  the 
former  maxim  in  this  respect,  it  differs  from  that  principle 

(a)    {§  397-404  are  cited  in  Snow  v.  Blount,  182  Mass.  489,  65  N.  E.  845. 


657  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.      §    397 

in  some  most  important  and  essential  features.  In  apply- 
ing the  maxim,  He  who  seeks  equity  must  do  equity,  as  a 
general  rule  regulating  the  action  of  courts,  it  is  necessarily 
assumed  that  different  equitable  rights  have  arisen  from  the 
same  subject-matter  or  transaction,  some  in  favor  of  the 
plaintiff  and  some  of  the  defendant;  and  the  maxim  re- 
quires that  the  court  should,  as  the  price  or  condition  of  its 
enforcing  the  plaintiff's  equity  and  conferring  a  remedy 
upon  him,  compel  him  to  recognize,  admit,  and  provide 
for  the  corresponding  equity  of  the  defendant,  and  award 
to  him  also  the  proper  relief.  The  maxim  does  not  assume 
that  the  plaintiff  has  done  anything  unconscientious  or  in- 
equitable ;  much  less  does  it  refuse  to  him  all  relief ;  on  the 
contrary,  it  grants  to  him  the  remedy  to  which  he  is  en- 
titled, but  upon  condition  that  the  defendant's  equitable 
rights  are  protected  by  means  of  the  remedy  to  which  he 
is  entitled.  On  the  other  hand,  the  maxim  now  under  con- 
sideration, He  who  comes  into  equity  must  come  with  clean 
hands,  is  much  more  efficient  and  restrictive  in  its  opera- 
tion. It  assumes  that  the  suitor  asking  the  aid  of  a  court 
of  equity  has  himself  been  guilty  of  conduct  in  violation  of 
the  fundamental  conceptions  of  equity  jurisprudence,  and 
therefore  refuses  him  all  recognition  and  relief  with  refer- 
ence to  the  subject-matter  or  transaction  in  question.  It 
says  that  whenever  a  party,  who,  as  actor,  seeks  to  set  the 
judicial  machinery  in  motion  and  obtain  some  remedy,  has 
violated  conscience,  or  good  faith,  or  other  equitable  prin- 
ciple, in  his  prior  conduct,  then  the  doors  of  the  court  will 
be  shut  against  him  in  limine;  the  court  will  refuse  to  in- 
terfere on  his  behalf,  to  acknowledge  his  right,  or  to  award 
him  any  remedy.*' 

(b)    Quoted  in  Lewis  v.  Holdrege,  284,  49  C.  C,  A.  324;  City  of  Chicago 

56   Neb.   379,    76   N.    W.   890;    Pine-  v.  Union  Stock  Yards  &  Transit  Co., 

ville  Land  &  Lumber  Co.  v.  Hollings-  164  111.  224,  45  N.  E.  430,  35  L.  R. 

worth,  21  Ky.  L.  Rep.  899,  53  S.  W.  A.   281;    Scott  v.    Austin,   36   Minn, 

279.     Cited  in  Michigan  Pipe  Co.  v.  460,  32  N.  W.  89,  864. 
Fremont    Ditch,    etc.,    Co.,    Ill    Fed. 

Vol.  1  —  42 


§    398  EQUITY    JURISPRUDENCE.  658 

§  398.  Is  based  upon  Conscience  and  Good  Faith. —  The 
principle  involved  in  this  maxim  is  merely  the  expression 
of  one  of  the  elementary  and  fundamental  conceptions  of 
equity  jurisprudence.  We  have  seen  that  in  the  origin  of 
the  jurisdiction  the  theory  was  adopted  that  a  court  of 
equity  interposes  only  to  enforce  the  requirements  of  con- 
science and  good  faith  with  respect  to  matters  lying  out- 
side of,  or  sometimes  perhaps  opposed  to,  the  law.  The 
action  of  the  court  was,  in  pursuance  of  this  theory,  in  a 
certain  sense  discretionary;  and  the  terms  **  discretionary  " 
and  "  discretion  "  are  still  occasionally  used  by  modern 
equity  judges  while  speaking  of  their  jurisdiction  and  reme- 
dial functions.  Whatever  may  be  the  strictly  accurate 
theory  concerning  the  nature  of  equitable  interference,  the 
principle  was  established  from  the  earliest  days,  that  while 
the  court  of  chancery  could  interpose  and  compel  a  defend- 
ant to  comply  with  the  dictates  of  conscience  and  good  faith 
with  regard  to  matters  outside  of  the  strict  rules  of  the 
law,  or  even  in  contradiction  to  those  rules,  while  it  could 
act  upon  the  conscience  of  a  defendant  and  force  him  to 
do  right  and  justice,  it  would  never  thus  interfere  on  be- 
half of  a  plaintiff  whose  own  conduct  in  connection  with 
the  same  matter  or  transaction  had  been  unconscientious 
or  unjust,  or  marked  by  a  want  of  good  faith,  or  had  vio- 
lated any  of  the  principles  of  equity  and  righteous  dealing 
which  it  is  the  purpose  of  the  jurisdiction  to  sustain.  While 
a  court  of  equity  endeavors  to  promote  and  enforce  justice, 
good  faith,  uprightness,  fairness,  and  conscientiousness  on 
the  part  of  the  parties  who  occupy  a  defensive  position 
in  judicial  controversies,  it  no  less  stringently  demands  the 
same  from  the  litigant  parties  who  come  before  it  as  plain- 
tiffs or  actors  in  such  controversies.  This  fundamental 
principle  is  expressed  in  the  maxim,  He  who  comes  into  a 
court  of  equity  must  come  with  clean  hands ;  and  although 
not  the  source  of  any  distinctive  doctrines,  it  furnishes  a 
inost  important  and  even  universal  rule  affecting  the  entire 


659  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.      §    399 

administration  of  equity  jurisprudence  as  a  system  of  reme- 
dies and  remedial  rights.^ " 

§  399.  Its  Limitations. —  Broad  as  the  principle  is  in  it& 
operation,  it  must  still  be  talcen  with  reasonable  limitations ; 
it  does  not  ajDply  to  every  unconscientious  act  or  inequitable 
conduct  on  the  part  of  a  plaintiff.  The  maxim,  considered 
as  a  general  rule  controlling  the  administration  of  equi- 
table relief  in  particular  controversies,  is  confined  to  mis- 
conduct in  regard  to,  or  at  all  events  connected  with,  the 
matter  in  litigation,  so  that  it  has  in  some  measure  affected 
the  equitable  relations  subsisting  between  the  two  parties, 
and  arising  out  of  the  transaction;  it  does  not  extend  to- 
any  misconduct,  however  gross,  which  is  imconnected  with 
the  matter  in  litigation,  and  with  which  the  opposite  party 
has  no  concern.  When  a  court  of  equity  is  appealed  to> 
for  relief  it  will  not  go  outside  of  the  subject-matter  of  the 
controversy,  and  make  its  interference  to  depend  upon  the 
character  and  conduct  of  the  moving  party  in  no  way  affect- 
ing the  equitable  right  which  he  asserts  against  the  defend- 
ant, or  the  relief  which  he  demands.^  * 

§  398,  1  Overton  v.  Banister,  3  Hare,  503;  Lewis's  Appeal,  67  Pa.  St.  166; 
Johns  V.  Norris,  22  N.  J.  Eq.  102;  Walker  v.  Hill,  22  N.  J.  Eq.  513;  Wilson  v. 
Bird,  28  N.  J.  Eq.  352;  Bleakley's  Appeal,  66  Pa,  St.  187;  Creath  v.  Sims, 
5  How.  192;  Weakley  v.  Watkins,  7  Humph.  356,  357;  Atwood  v.  Fisk,  101 
Mass.  363,  100  Am.  Dec.  124;  Gannett  v.  Albee,  103  Mass.  372;  Marcy  v„ 
Dunlap,  5  Lans.  365 ;  Paine  v.  Lake  Erie,  etc.,  R.  R,,  31  Ind.  283. 

§  399,  1  Lewis's  Appeal,  67  Pa.  St.  166;  Meyer  v.  Yesser,  32  Ind.  294.  lit 
Lewis's  Appeal,  67  Pa.  St.  166,  the  court  say:  "  It  is  not  every  unfounded  claim 
which  a  man  may  make,  or  unfounded  defense  which  he  may  set  up,  which 
will  bar  him  from  proceeding  in  a  court  of  equity.  The  rule  that  he  who 
comes  into  equity  must  come  with  clean  hands  must  be  understood  to  refer 
to  willful  misconduct  in  regard  to  the  matter  in  litigation:  Snell's  Equity, 
25.  All  the  illustrations  given  in  Francis's  Maxims  of  Equity,  5,  under  the 
maxim,  as  he  states  it.  He  that  hath  committed  iniquity  shall  not  have  equity,, 
show  this." 

§  398,   (a)  Cited  in  Michigan  Pipe  equity    to    enjoin    its    unauthorized 

Co.  V.  Fremont  Ditch,  etc.,   Co.,  Ill  abatement:   Pittsburgh,   C,  C.  &   St. 

Fed.  284,  49  C.  C.  A.  324;  American  L.  R'y  Co.  v.  Town  of  Crothersville, 

Ass'n  V.  Innis,  109  Ky.  595,  60  S.  W.  159  Ind.  330,  64  N.  E.  914. 
388.     It  is  held,  in  accordance  with  §   399,    (a)  The  text  is  quoted  in 

the  maxim,  that  a  plaintiff  who  main-  American  Ass'n  v.  Innis,  109  Ky.  595, 

tains  a  nuisance  has  no  standing  in  60  S.  W.  388;  Rice  v.  Rockefeller,  134 


§  400 


EQUITY   JUKISPRUDENCE. 


660 


§  400.  Illustrations  —  Specific  Performance. —  I  shall  now 
give  some  examples  to  illustrate  the  circumstances  under 
which  this  principle  operates  in  the  administration  of  equi- 
table relief,  and  the  maimer  in  which  it  is  applied.  The 
first  instance  which  I  shall  mention  is  found  in  the  familiar 
doctrine  which  controls  the  equitable  remedy  of  the  specific 
performance  of  contracts.  A  contract  may  be  perfectly 
valid  and  binding  at  law ;  it  may  be  of  a  class  which  brings 
it  within  the  equitable  jurisdiction,  because  the  legal  rem- 
edy is  inadequate;  but  if  the  plaintiff's  conduct  in  obtain- 
ing it,  or  in  acting  under  it,  has  been  unconscientious,  in- 
equitable, or  characterized  by  bad  faith,  a  court  of  equity 
will  refuse  him  the  remedy  of  a  specific  performance,  and 
will  leave  him  to  his  legal  remedy  by  action  for  damages. 
It  is  sometimes  said  that  the  remedy  of  specific  perform- 
ance rests  with  the  discretion  of  the  court;  but,  rightly 
viewed,  this  discretion  consists  mainly  in  applying  to  the 


N.  Y.  174,  30  Am.  St.  Kep.  058,  31  N. 
E.  907,  17  L.  R.  A.  237;  cited  in  Be- 
thea  V.  Bethea,  116  Ala.  265,  22  South. 
561;  Foster  v.  Winchester,  92  Ala. 
497,  9  South.  83;  Moseler  v.  Jacobs, 
66  111.  App.  571;  John  Amsfield  Co. 
V.  Edw.  B.  Grossman  &  Co.,  98  111. 
App.  180;  Woodward  v.  Woodward, 
41  N.  J.  Eq.  224,  4  Atl.  424;  Lang- 
don  V,  Templeton,  66  Vt.  173,  28  Atl. 
866;  Liverpool  &  L.  &  G.  Ins.  Co.  v. 
Clunie,  88  Fed.  160;  Viertel  v.  Viertel 
(Mo.  App.),  75  S.  W.  187.  See  also 
Coeur  d'AlOne  Cons.  &  M.  Co.  v. 
Miners'  Union,  51  Fed.  260,  19  L.  R. 
A.  382;  Shaver  v.  Heller  &  Merz  Co., 
108  Fed.  831,  48  C.  C.  A.  48,  affirm- 
ing 102  Fed.  882;  General  Electric 
Co.  V.  Wise,  119  Fed.  922;  Trice  v. 
Comstock,  121  Jed.  620,  61  L.  R.  A. 
176,  and  cases  cited;  Yale  Gas  Stove 
Co.  V.  Wilcox,  64  Conn.  101,  128,  42 
Am.  St.  Rep.  159,  173,  20  Atl.  303; 
Delaware  Surety  Co.  v.  Layton  (Del. 
Ch.),  50  Atl.  378;  Brown  v.  Jacobs 
Pharmacy  Co.,  115  Ga.  429,  41  S.  E. 


553,  90  Am.  St.  Rep.  126;  City  of 
Chicago  V.  Union  Stock  Yards  & 
Transit  Co.,  164  111.  224,  45  N.  E. 
430,  35  L.  R.  A.  281;  Hodge  v.  United 
States  Steel  Co.,  64  N.  J.  Eq.  90,  53 
Atl.  553;  Kinner  v.  Lake  Short*  & 
M.  S.  R'y  Co.,  69  Ohio,  339,  69  N.  E. 
614;  Upchurch  v.  Anderson  (Tenn. 
Ch.  App.),  52  S.  W.  917;  Post  v. 
Campbell,  110  Wis.  378,  85  N.  W. 
1032.  This  maxim  "  denies  all  re- 
lief to  a  suitor,  however  well  founded 
his  claim  to  equitable  relief  may 
otherwise  be,  if,  in  granting  the  re- 
lief which  he  seeks,  the  court  would 
be  required,  by  implication  even,  to 
affirm  the  validity  of  an  unlawful 
agreement,  or  give  its  approval  to 
inequitable  conduct  on  his  part.  But 
a  court  of  equity  is  not  an  avenger 
of  wrongs  committed  at  large  by  those 
who  resort  to  it  for  relief,  however 
careful  it  may  be  to  withhold  its  ap- 
proval from  those  which  are  involved 
in  the  subject-matter  of  the  suit,  and 
which  prejudicially  affect  the  rights 


661 


MTJST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  400 


plaintiff  the  principle,  He  who  comes  into  a  court  of  equity 
must  come  with  clean  hands,  although  the  remedy,  under 
certain  circumstances,  is  regulated  by  the  principle,  He  who 
seeks  equity  must  do  equity.  The  doctrine,  thus  applied, 
means  that  the  party  asking  the  aid  of  the  court  must 
stand  in  conscientious  relations  towards  his  adversary ;  that 
the  transaction  from  which  his  claim  arises  must  be  fair 
and  just,  and  that  the  relief  itself  must  not  be  harsh  and 
oppressive  upon  the  defendant.  By  virtue  of  this  principle, 
a  specific  performance  will  always  be  refused  when  the 
plaintiff  has  obtained  the  agreement  by  sharp  and  un- 
scrupulous practices,  by  overreaching,  by  concealment  of 
important  facts,  even  though  not  actually  fraudulent,  by 
trickery,  by  taking  undue  advantage  of  his  position,  or  by 
any  other  means  which  are  unconscientious ;  and  when  the 
contract  itself  is  unfair,  one-sided,  unconscionable,  or  af- 
fected by  any  other  such  inequitable  feature ;  and  when  the 


of  one  against  whom  relief  is  sought;" 
Kinner  v.  Lake  Shore  &  M.  S.  R'y  Co., 
69  Ohio  St.  339,  69  N.  E.  614.  Thus,  it 
has  been  held  or  stated  that  the  fact 
that  plaintiff  was  a  member  of  an 
illegal  association  or  combination 
was  no  defense  to  a  suit  to  enjoin 
ticket  "scalping"  (Kinner  v.  Lake 
Shore  &  M.  S.  R'y  Co.,  69  Ohio  St. 
339,  69  N.  E.  614)  ;  or  infringement 
of  a  patent  (General  Electric  Co.  v. 
Wise,  119  Fed.  922);  or  unlawful 
interference  by  a  labor  union  (Cceur 
d'Alene  Cons.  &  M.  Co.  v.  Miners' 
Union,  51  Fed.  260,  19  L.  R.  A.  382). 
To  a  suit  for  injunction  against  the 
unfair  use  of  the  trade-name  of  one 
of  complainant's  products,  it  is  no 
defense  that  other  products  manu- 
factured by  the  complainant  bore 
misleading  names:  Shaver  v.  Heller 
&  Merz  Co.,  108  Fed.  821,  48  C.  C.  A. 
48,  aflirming  102  Fed.  882.  A  rail- 
road may  enjoin  a  city  from  remov- 
ing its  tracks,  although  it  has  used 
its  road  for  certain  unauthorized  pur- 


poses not  involved  in  the  suit:  City 
of  Chicago  v.  Union  Stock  Yards  & 
Transit  Co.,  164  111.  224,  45  N.  E. 
430,  35  L.  R.  A.  281.  To  an  injunc- 
tion against  a  combination  to  destroy 
complainant's  business  it  is  no  de- 
fense that  complainant  has  on  some 
occasions  sold  spurious  goods:  Brown 
V.  Jacobs  Pharmacy  Co.,  115  Ga.  429, 
41  S.  E.  553,  90  Am.  St.  Rep.  126, 
57  L.  R.  A.  547.  In  Delaware  Surety 
Co.  V.  Layton  (Del.  Ch.),  50  Atl.  378, 
the  plaintiff  sought  an  injunction  to 
prevent  the  secretary  of  state  from 
taking  the  plaintiff's  certificate  of 
incorporation  into  another  state  for 
use  in  a  prosecution  against  its  presi- 
dent and  secretary  for  perjury  in 
swearing  to  the  certificate;  it  was 
held  that  such  perjury  was  not  so 
connected  with  the  subject-matter  as 
to  justify  the  application  of  this 
maxim  to  the  plaintiff's  suit.  The 
correctness  of  this  decision  seems 
doubtful. 


,§  401  EQUITY   JURISPRUDENCE.  662 

specific  eDforcement  would  be  oppressive  upon  the  defend- 
ant, or  would  prevent  the  enjoyment  of  his  own  rights,  or 
would  in  any  other  manner  work  injustice.*  *  This  applica- 
tion of  the  principle,  better  perhaps  than  any  other,  illus- 
trates its  full  meaning  and  effect;  for  it  is  assumed  that 
the  contract  is  not  illegal;  that  no  defense  could  be  set  up 
against  it  at  law;  and  even  that  it  possesses  no  features  or 
incidents  which  could  authorize  a  court  of  equity  to  set  it 
aside  and  cancel  it.  Specific  performance  is  refused  simply 
because  the  plaintiff  does  not  come  into  court  with  clean 
hands. 

§  401.  Fraud Another  familiar  illustration  of  the  prin- 
ciple may  be  found  in  all  cases  where  the  plaintiff's  claim  is 
affected  by  his  own  fraud.  Whatever  be  the  nature  of  the 
plaintiff's  claim  and  of  the  relief  which  he  seeks,  if  his  claim 
grows  out  of  or  depends  upon,  or  is  inseparably  connected 
with,  his  own  prior  fraud,  a  court  of  equity  will,  in  general, 
•deny  him  any  relief,  and  will  leave  him  to  whatever  reme- 
dies and  defenses  at  law  he  may  have.**     The  maxim  is 

§  400,  1  Willard  v.  Tayloe,  8  Wall.  557,  565,  per  Field,  J.;  Marble  Co.  v.  Rip- 
ley, 10  Wall.  339,  356,  357;  Fish  v.  Leser,  69  111.  394,  395;  Stone  v.  Pratt,  25 
111.  25,  34;  Quinn  v.  Roath,  37  Conn.  16,  24;  Cooper  v.  Pena,  21  Cal.  403,  411; 
'Bruck  V.  Tucker,  42  Cal.  346,  353;  Aston  v.  Robinson,  49  Miss.  348,  351; 
Weise's  Appeal,  72  Pa.  St.  351,  354;  Snell  v.  Mitchell,  65  Me.  48,  50;  Black- 
Tvilder  v.  Loveless,  21  Ala.  371,  374;  Seymour  v.  De  Lancey,  6  Johns.  Ch. 
222,  224;  Eastman  v.  Plumer,  46  N.  H.  464;  Crane  v.  De  Camp.  21  N.  J.  Eq. 
414;  Plunimer  v.  Kepler,  26  N.  J.  Eq.  481;  Sherman  v.  Wright,  49  N.  Y.  227; 
Smoot  V.  Rea,  19  Md.  398;  Phillips  v.  Stauch,  20  Mich.  369;  Auter  v.  Miller, 
18  Iowa,  405;  Burke  v.  Seely,  46  Mo.  334;  Mississippi,  etc.,  R.  R.  v.  Cromwell, 
•91  U.  S.  643;  Laraare  v.  Dixon,  L.  R.  6  H.  L.  414,  423,  per  Lord  Chelmsford. 

§  401,  1  Overton  v.  Banister,  3  Hare,  503,  506.  An  infant,  fraudulently 
representing  himself  to  be  of  age,  obtained  from  trustees  delivery  of  a  certain 
amount  of  stock,  to  which  he  would  be  entitled  upon  his  coming  of  age,  and 
afterwards,  when  he  did  come  of  age,  he  demanded  and  received  the  rest  of  the 
stock.     On  account  of  tliis  fraud,  it  was  held  that  neither  he  nor  his  assignees 

§  400,   (a)  Cited  in  Michigan  Pipe  eludes  bill  by  him  to  set  aside  contract 

Co.  V.   Fremont  Ditch,  etc.,  Co.,   Ill  dissolving    partnership)  ;     Hanley    v. 

Fed.  284,  49  C.  C.  A.  324.     See  also  Sweeny,    109    Fed.   712,   48   C.    C.   A. 

§  1404,  and  note  to  §  1405.  612    (plaintifl  by  fraud  procured  the 

8  401,   (a)   Trice  v.  Comstock,  115  insertion  of  his  name  as  purchaser  in 

Fed.   765;    Richardson  v.   Walton,   49  order  confirming  administrator's  sale, 

iFed.   888    (fraud    by   a    partner   pre-  and    accordingly    equitable    relief    to 


663  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  401 

more  frequently  invoked  in  cases  upon  fraudulent  contracts. 
If  a  contract  has  been  entered  into  through  fraud,  or  to 
accomplish  any  fraudulent  pui^ose,  a  court  of  equity  will 
not,  at  the  suit  of  one  of  the  fraudulent  parties, —  a  parti- 
ceps  doll, —  while  the  agreement  is  still  executory,  either 
compel  its  execution  or  decree  its  cancellation,  nor  after 
it  has  been  executed,  set  it  aside,  and  thus  restore  the  plain- 
tiff to  the  property  or  other  interests  which  he  had  fraudu- 

could  compel  repayment  by  the  trustees  of  the  amount  which  they  had  thus 
paid  over  during  the  minority,  although  such  payment  was  in  fact  a  breach 
of  trust,  and  in  the  absence  of  the  fraud  the  trustees  would  have  been  liable. 
Upon  the  subject  of  an  infant's  fraud  in  general,  and  its  effect  as  viewed  by 
equity,  see  Evroy  v.  Nicholas,  2  Eq.  Cas.  Abr.  488;  Cory  v.  Gertcken,  2  Madd. 
40;  Nelson  v.  Stocker,  4  De  Gex  &  J.  458,  464,  per  Knight  Bruce,  L.  J.;  Wright 
T.  Snowe,  2  De  Gex  &  S.  321.  As  another  example,  a  party  who  fraudulently 
or  wrongfully  alters  a  written  instrument  cannot  maintain  a  suit  to  obtain 
the  remedy  of  a  reformation:  Marcy  v.  Dunlap,  5  Lans.  365;  and  see  Bleak- 
ley's  Appeal,  66  Pa.  St.  187. 


set  aside  deed  to  defendant,  the  true 
purchaser,  was  denied)  ;  Union  Nat. 
Bank  v.  Hines,  177  111.  417,  53  N.  E. 
83;  Morley  Bros.  v.  Stringer  (Mich.), 
95  N.  W.  978  (fraudulent  grantee 
who  pays  a  mortgage  is  not  entitled 
to  reimbursement  from  plaintiff  in  a 
creditor's  bill)  ;  Morrison  v.  Juden, 
145  Mo.  282,  46  S.  W.  994;  Hart  v. 
Deitrich  (Neb.),  96  N.  W.  144  (part- 
ner who  absconds  with  firm  funds 
cannot  subsequently  obtain  an  ac- 
counting in  equity)  ;  Farrow  v.  Hol- 
land Trust  Co.,  74  Hun,  585,  26  N, 
Y.  Supp.  502;  Robinson  v.  Brooks, 
31  Wash.  60,  71  Pac.  721  (one  who 
files  a  lien  knowing  it  to  contain  non- 
lienable  items,  cannot  maintain  bill 
to  foreclose  it)  ;  Raasch  v.  Eaasch, 
100  Wis.  400,  76  N.  W.  591.  A  cred- 
itor who  obtains  an  assignment 
through  fraud  is  not  entitled  to  the 
aid  of  a  court  of  equity  to  enforce 
his  claim  under  the  assignment: 
Commercial  Nat.  Bank  v.  Burch,  141 
111.  519,  31  N.  E.  420,  33  Am.  St. 
Rep.  331.   Knowingly  and  consciously 


making  an  untrue  and  excessive 
claim  will  defeat  the  right  to  a  lien 
under  a  statute:  Camden  Iron  Works 
V.  City  of  Camden,  64  N.  J.  Eq.  723, 
52  Atl.  477.  One  engaged  in  a  fraud- 
ulent enterprise  cannot  complain  that 
his  partner  in  fraud  did  not  keep 
faith:  Bagwell  v,  Johnson,  116  Ga. 
464,  42  S.  E.  733. 

In  Edward  Thompson  Co.  v.  Ameri- 
can Law  Book  Co.  (C.  C.  A.),  122 
Fed.  923,  there  are  dicta  to  the  effect 
that  the  publisher  of  a  law  encyclo- 
paedia which  in  some  instances  was 
guilty  of  "  piracy "  in  copying  the 
language  of  copyrighted  works  with- 
out the  consent  of  the  owTiers  of  the 
copyrights  has  no  standing  in  a  court 
of  equity  to  complain  of  infringement 
of  its  copyriglit  by  a  rival  encyclo- 
paedia, consisting  in  copying  lists  of 
cases  and  authorities  from  complain- 
ant's work.  But  qucere,  whether 
complainant's  misconduct  was  not 
unconnected  with  the  matter  in  liti- 
gation, within  the  principle  of  §  399, 
ante. 


§401 


EQUITY   JURISPRUDENCE. 


664 


lently  transferred.^^  Equity  will  leave  such  parties  in 
exactly  the  position  in  which  they  have  placed  themselves^ 
refusing  all  affirmative  aid  to  either  of  the  fraudulent  par- 
ticipants.   The  only  equitable  remedies  which  they  can  ob- 

2Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  688,  689  (decision  dismissing  the 
cross-bill  of  the  defendant,  Sprye);  Wheeler  v.  Sage,  1  Wall.  518;  Paine  v. 
Lake  Erie,  etc.,  R.  R.,  31  Ind.  283;  Creath  v.  Sims,  5  How.  192;  White  v. 
Crew,  16  Ga.  416,  420.  One  of  the  most  common  occasions  for  the  enforce- 
ment of  this  rule  arises  in  cases  where  a  debtor  has  conveyed  or  assigned  or 
in  any  manner  transferred  his  property  for  the  purpose  of  defrauding  his 
creditors,  and  afterwards  seeks  to  set  aside  the  transfer  as  against  the 
grantee  or  assignee  and  recover  back  the  property.  The  door  of  a  court  of 
equity  is  always  shut  against  such  a  claimant.©  Freeman  v.  Sedwick,  6  Gill,. 
28,  39,  46  Am.  Dec.  650;  Stewart  v.  Iglehart,  7  Gill  &  J.  132,  28  Am.  Dec.  202; 
Bolt  V.  Rogers,  3  Paige,  156;  Stark's  Ex'rs  v.  Littlepage,  4  Rand.  372;  Janey 
V.  Bird's  Adm'rs,  3  Leigh,  510. 


(b)  The  text  is  cited  in  McClintock 
V.  Loisseau,  31  W.  Va.  865,  8  S.  E. 
612,  2  L.  R.  A.  816.  See  also  In  re 
Great  Berlin  S.  Co.,  L.  R.  26  Ch.  Div. 
616;  Kitchen  v.  Rayburn,  86  U.  S. 
(19  Wall.)  254;  Selz  v.  Unna,  73 
U.  S.  (6  Wall.)  327;  Randall  v. 
Howard,  67  U.  S.  (2  Black)  585; 
Bartle  v.  Coleman,  29  U.  S.  (4  Pet.) 
184;  Schermerhorn  v.  De  Chambrim, 
64  Fed.  195,  12  C.  C.  A.  81,  26  U.  S. 
App.  212  (contract  to  defraud  cred- 
itors) ;  Clark  v.  Buffalo  Hump  Min. 
Co.,  122  Fed.  243;  Kirkpatrick  v. 
Clark,  132  111.  342,  22  Am.  St.  Rep. 
531,  24  N.  E.  71,  8  L.  R.  A.  511; 
Pearce  v.  Ware,  94  Mich.  321,  53 
N.  W.  1106;  Helsley  v.  Futz,  76  Va. 
671;  Smith  v.  Chilton,  84  Va.  840, 
6  S.  E.  142;  Bearden  v.  Jones  (Tenn. 
Ch.  App.),  48  S.  W.  88;  Lowther  Oil 
Co.  V.  Miller-Sibley  Oil  Co.,  53  W.  Va. 
501,  97  Am.  St.  Rep.  1027,  44  S.  E. 
433    (specific  performance). 

(c)  Conveyance  in  Fraud  of  Credit- 
ors.—  The  text  is  cited  in  Sniper  v. 
Kellclier  (Wa.sh.),  72  Pac.  07.  See 
also  Dent  v.  Ferguson,  132  U.  S.  50, 
10  Sup.  Ct.  13;  Brown  v.  Brown,  60 
Conn.  493,  34  Atl.  490  (property  con- 


veyed by  third  party  to  defendant  in 
trust  for  plaintiff,  in  order  to  defraud 
plaintiff's  wife)  ;  Brady  v.  Huber,  197 
111.  291,  64  N.  E.  264,  90  Am.  St. 
Rep.  161;  Durand  v.  Higgins  (Kan.), 
72  Pac.  567  (grantor  of  conveyance 
in  fraud  of  creditors  cannot  have  his 
title  quieted  as  against  such  convey- 
ance) ;  Hill  V.  Scott,  12  Ky.  L.  Rep. 
877,  15  S.  W.  667;  Watts  v.  Van- 
sant  (Md.),  58  Atl.  433;  Moore  v. 
Jordan,  65  Miss.  229,  3  South.  737,. 
7  Am.  St.  Rep.  641;  White  v.  Cuth- 
bert,  41  N.  Y.  Supp.  818,  10  App, 
Div.  220  (cancellation  of  note  given 
to  assist  fraudulent  attachment  re- 
fused) ;  Pride  v.  Andrews,  51  Ohio 
St.  405,  38  N.  E.  84,  and  cases  cited ; 
Hukill  V.  Yoder,  1S9  Pa.  St.  233,  4i 
Wkly.  Notes  Cas.  347,  42  Atl.  122; 
Craig  V.  Craig  (W.  Va.),  46  S.  E. 
371.  And  see  all  the  cases  collected 
in  note,  3  Am.  St.  Rep.  727.  In 
Bush  V.  Rogan,  65  Ga.  320,  38  Am. 
Rep.  785,  it  is  held  that  the  grantee 
can  maintain  ejectment  against  the 
grantor;  but  see  Kirkpatrick  V. 
Clark,  132  111.  342,  22  Am.  St.  Rep. 
531,  24  N.  E.  71,  8  L.  R.  A.  611. 


665  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  401 

tain  are  purely  defensive.  Upon  the  same  principle,  wher- 
ever one  party,  in  pursuance  of  a  prior  arrangement,  has 
fraudulently  obtained  property  for  the  benefit  of  another, 
equity  will  not  aid  the  fraudulent  beneficiary  by  compelling 
a  conveyance  or  transfer  thereof  to  him;  and  generally, 
where  two  or  more  have  entered  into  a  fraudulent  scheme 
for  the  purpose  of  obtaining  property  in  which  all  are  to 
share,  and  the  scheme  has  been  carried  out  so  that  all 
the  results  of  the  fraud  are  in  the  hands  of  one  of  the 
parties,  a  court  of  equity  will  not  interfere  on  behalf  of 
the  others  to  aid  them  in  obtaining  their  shares,  but  will 
leave  the  parties  in  the  position  where  they  have  placed 
themselves.^  ^ 

s  Johns  V.  Norris,  22  N.  J.  Eq.  102;  Walker  v.  Hill,  22  N.  J.  Eq.  513  ^ 
Bleakley's  Appeal,  66  Pa.  St.  187;  Musselman  v.  Kent,  33  Ind.  452;  Hunt 
r.  Rowland,  28  Iowa,  349;  Hibernian,  etc..  See.  v.  Ordway,  38  Cal.  679.  In 
Johns  V.  Norris,  22  N.  J.  Eq.  102,  where  a  widow,  by  a  prior  arrangement,. 
procured  a  third  person  to  buy  in  the  real  estate  of  her  husband  at  a  fore- 
closure sale  at  a  price  far  below  its  real  value,  by  contrivances  agreed  upon 
to  deter  other  persons  from  bidding,  and  by  giving  out  that  the  purchase  was 
for  the  benefit  of  the  widow  and  her  family,  it  was  held  that  she  was  a  partici- 
pant in  the  fraud  against  the  heirs  and  creditors,  and  did  not  come  into  court 
with  clean  hands,  in  a  suit  to  compel  the  confederate  to  convey  the  land  to 
her,  and  relief  was  therefore  refused.  In  Walker  v.  Hill,  22  N.  J.  Eq.  513,  the 
same  was  held  with  respect  to  an  execution  debtor  who  had  by  a  secret  arrange- 
ment procured  a  person  to  buy  in  the  property  at  the  execution  sale  for  the 
debtor's  benefit,  in  such  a  manner  as  to  be  fraudulent  against  other  creditors 
and  purchasers.  The  court  refused  to  grant  relief  by  compelling  a  conveyance 
by  the  purchaser  to  the  execution  debtor.  In  Bleakley's  Appeal,  66  Pa.  St. 
187,  the  principle  was  applied  under  different  circumstances.  One  I.  was  the 
vendee  under  a  land  contract,  and  had  paid  part  of  the  purchase  price.  A 
judgment  was  then  recovered  against  him  by  L. ;  whereupon  I.  assigned  the 
contract  to  B.,  antedating  the  assignment,  so  that  it  appeared  to  precede  the 
recovery  of  the  judgment.  This  assignment  was  made  both  by  I.  and  B.  for 
the  purpose  of  defrauding  L.  B.  afterwards  paid  to  the  vendor  in  the  land 
contract  the  residue  of  the  purchase-money.  L.  in  the  mean  time  issued  an 
execution,  and  I.'s  interest  under  the  land  contract  was  sold  at  execution  sale, 
and  bought  in  by  the  judgment  creditor,  L.  L.  brings  this  suit  against  the 
vendor  to  compel  a  specific  performance  of  the  contract  by  a  conveyance  to 
himself.     Held,   that   L.   was  entitled  to  such  specific  performance   and   con- 

(d)   The  text  is  quoted  in  Milhaus       Lawton  v.  Estes,   167  Mass.   181,  45 
V.  Sally,  43  S.  C.  318,  21  S.  E.  268,       N.  E.  90,  57  Am.  St.  Rep.  450. 
885,  49  Am.  St.  Rep.  834.     And  see 


§  402  EQUITY    JURISPRUDENCE.  666 

§  402.  Illegality. —  Anotlier  very  common  occasion  for  in- 
voking the  i^rincipie  is  illegality.''  Wherever  a  contract  or 
other  transaction  is  illegal,  and  the  parties  thereto  are, 
in  contemplation  of  law,  in  pari  delicto,  it  is  a  well-settled 
rule,  subject  only  to  a  few  special  exceptions  depending 
upon  other  considerations  of  policy,  that  a  court  of  equity 
will  not  aid  a  particeps  criminis,  either  by  enforcing  the 
contract  or  obligation  while  it  is  yet  executory,  nor  by  re- 
lieving him  against  it,  by  setting  it  aside,  or  by  enabling 
him  to  recover  the  title  to  property  which  he  has  parted 
with  by  its  means.  The  principle  is  thus  applied  in  the 
same  manner  when  the  illegality  is  merely  a  malum  pro- 
hibitum, being  in  contravention  to  some  positive  statute, 
and  when  it  is  a  malum  in  se,  as  being  contrary  to  public 
policy  or  to  good  morals.**  Among  the  latter  class  are 
agreements  and  transfers  the  consideration  of  which  was 
violation  of  chastity,  compounding  of  a  felony,  gambling, 
false  swearing,  the  commission  of  any  crime,  or  breach 

veyance  by  the  vendor,  without  repaying  to  B.  the  amount  of  the  purchase 
price  ivhich  he  had  paid  to  the  vendor.  Speaking  of  B.'s  claim  to  be  repaid, 
the  court  said:  "He  (B.).  standing  thus  before  a  chancellor,  cannot  ask  him 
to  make  repayment  to  him  a  condition  to  a  decree  removing  the  fraudulent 
obstruction  he  threw  in  the  way.  The  payment  is  one  of  the  very  steps  he 
took  to  consummate  the  fraud  upon  L.  If  he  have  a  legal  right  of  recovery, 
he  must  resort  to  his  action  at  law;  if  he  can  have  none,  it  is  a  test  of  his 
want  of  equity.  And  in  addition  to  all  this,  it  is  a  rule  that  a  chancellor  will 
not  assist  a  party  to  obtain  any  benefit  arising  from  fraud.  He  must  come 
into  a  court  of  equity  with  clean  hands.  It  would  be  a  singular  exercise  of 
equity  whicli  would  assist  a  party,  who  had  paid  money  to  enable  him  to 
perpetrate  a  fraud,  to  recover  his  money,  just  when  the  chancellor  was  en- 
gaged in  thrusting  out  of  the  way  of  his  doing  equity  to  the  injured  party 
the  very  instrument  of  the  fraud.  He  who  does  iniquity  shall  not  have  equity: 
Hershey  v.  Weiting,  14  Wright,  244."  See  also  Odessa  Tramways  Co.  v.  Men- 
del, L,  R.  8  Ch.  Div.  235. 

(a)  Til  is  section  of  the  text  is  cited  graph  are  discussed  more  at  length 

in  Basket  v.  Moss,  115  N.  C.  448,  20  in  §§  937-942. 

S.  E.  733,  44  Am.  St.  Rep.  4G3,  48  (b)    This    portion    of    the   text    is 

L.   R.  A.  842;    Booker  v.  Wingo,  29  quoted    in   Greer   v.    Payne,   4    Kan. 

S.  C.   116,  7   S.   E.  49.     Tlie  subjects  A  pp.    153,   46    Pac.    190;    Vincent   v. 

treated  in  this  and  the  following  para-  Moriarty,   52  N.  Y.   Supp.  519. 


667  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  402 

of  good  morals/  It  should  be  obsen'^ed,  however,  in  order 
to  avoid  any  misapprehension  and  seeming  inconsistency 
in  the  decisions,  that  there  are  agreements  which  appear, 
at  first  blush,  to  be  founded  upon  an  immoral  considera- 

1  Cases  of  illegal  contracts  upon  a  consideration  in  violation  of  chastity  :c 

Benyon  v.  Nettlefield,  3  Macn.  &  G.  94,   102,   103;   Bodly  v.  ,  2  Cas. 

Ch.  15,  per  Lord  Nottingham;  Whaley  v.  Norton,  1  Vern.  482;  Bainham  v. 
Manning,  2  Vern.  242;  Spicer  v.  Hayward,  Prec.  Ch.  114;  Dillon  v.  Jones, 
<!ited  in  5  Ves.  290;  Franco  v.  Bolton,  3  Ves.  368;  Batty  v.  Chester,  5  Beav. 
103;  Smyth  v.  Griffin,  13  Sim.  245;  Priest  v.  Parrot,  2  Ves.  Sr.  160;  Cray 
V.  Rooke,  Cas.  t.  Talb.  153;  Hill  v.  Spencer,  Amb.  641,  836;  Gray  v.  Mathias, 
5  Ves.  286;  Clark  v.  Periam,  2  Atk.  333.  In  the  following  cases  relief  was 
given,  in  some  to  the  man  or  his  representatives,  in  others  to  the  woman, 
upon  contracts  of  the  same  general  nature;  but  on  examination  none  of 
them  will  be  found  in  opposition  to  the  principle:  the  exact  question  either 
was  not  raised  by  the  pleadings,  or  the  consideration  was  not,  in  the  view 
of  the  court,  illegal:  Sismey  v.  Eley,  17  Sim.  1;  Knye  v.  Moore,  Sim.  &  St. 
€1;  Matthew  v.  Hanbury,  2  Vern.  187;  Robinson  v.  Cox,  9  Mod.  263;  Clark 
V.  Periam,  2  Atk.  333;  Marchioness  of  Annandale  v.  Harris,  2  P.  Wms. 
432;  Hall  V.  Palmer,  3  Hare,  532.  Cases  where  the  agreement  was  upon 
a  gambling  consideration,  or  a  lottery,  etc.:  d  Weakley  v.  Watkins,  7 
Humph.  356,  357;  Paine  v.  France,  26  Md.  46;  but  where  money  had  been 
loaned  expressly  to  enable  the  borrower  to  pay  a  gambling  debt,  it  does  not 
come  within  the  rule,  and  can  be  recovered  back:  Ex  parte  Pyke,  8  Ch. 
Div.  754,  756,  757.  Cases  where  the  agreement  or  transfer  was  made  upon 
the  consideration  of  compounding  a  felony,  or  of  promising  not  to  prosecute 
for  some  crime:  e  Harrington  v.  Bigelow,  11  Paige,  349;  Atwood  v.  Fisk, 
101  Mass.  363,  100  Am.  Dec.  124;  Swartzer  v.  Gillett,  1  Chand.  207,  209,  210; 
but  see  Davies  v.  London,  etc.,  Co.,  L.  R.  8  Ch.  Div.  469.  This  and  other 
cases  of  the  same  class  in  which  relief  is  given  are  explained  in  the  next  suc- 
ceeding paragraph  and  the  note  thereunder.  Cases  in  which  the  agreement 
or  transaction  is  illegal,  because  contrary  to  the  provisions  of  some  positive 
statute   or   to   public  policy:  f     In   re  Arthur   Average  Ass'n,  L.  R.   10   Ch. 

(c)  A  contract  in  consideration  of  St.  523,  23  Atl.  838,  29  Wkly.  Notes 
or  relating  to  illicit  sexual  relations       Cas.  537. 

will    not    be    enforced:     Chateau    v.  (e)  Compounding   a    felony:      Rock 

Singla,  114  Cal.  91,  45  Pac.  1015,  55  v.  Mathews,  35  W.  Va.  531,  14  S.  E. 

Am.   St.   Rep.   63,   33   L.  R.  A.   750;  137,   14  L.   R.  A.   508;   Treadwell  v. 

Watkins   v.   Nugen    (Ga.),  45   S.   E.  Torbert,  119  Ala.  279,  24  South.  54, 

262;    Brindley  v.   Lawton,   53   N.   J.  72   Am.    St.    Rep.    918.      Agreements 

Eq,    (8  Dick)    259,  31  Atl.  394    (bill  not  to  prosecute:  Moore  v.  Adams,  8 

to  compel  restoration  of  stock  given  Ohio  (8  Ham),  372,  32  Am.  Dec.  723; 

in    consideration    of    illicit    relations  George  v.    Curtis,   45    W.   Va.    1,    30 

cannot  be  sustained).  S.  E.  69. 

(d)  Board  of  Trade  v.  O'Dell  Com-  (£)  Teoli  v.  Nardolillo,  23  R.  I.  87, 
mission  Co.,  115  Fed.  574  (bucket  49  Atl.  489  (accounting  between  part- 
shop)  ;  Baxter  v.  Deneen  (Md.),  57  uers  engaged  in  unlawful  business). 
Atl.  601;  Stewart  v.  Parnell,  147  Pa. 


§  402  EQUITY   JUEISPRUDENCB.  66^ 

tion,  or  which  would  at  one  time  perhaps  have  been  re- 
garded as  contrary  to  public  policy,  which  courts  of  equity 
do  not  consider  to  be  illegal,  and  which  they  will  theref ore- 
enforce,  if  properly  coming  within  their  jurisdiction.    Of 

542 ;  In  re  South  Wales,  etc.,  Co.,  L.  R.  2  Ch.  Div.  763 ;  Sykes  v.  Beadon,  L.  R, 
11  Ch.  Div.  170,  183,  197;  Thomson  v.  Thomson,  7  Ves.  470;  Regby  v.  Con- 
nol,  L.  R.  14  Ch.  Div.  482,  491;  Carey  v.  Smith,  11  Ga.  539,  547.  In  the  first 
two  cases  above  named,  it  was  held  that  an  association,  illegal  because  not 
organized  in  conformity  with  certain  mandatory  statute,  cannot  be  "  wound 
up"  by  a  court  of  equity.  In  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,. 
a  company  had  been  formed  for  the  purpose  of  making  investments  and' 
dealing  in  securities,  all  the  members  having  signed  articles  of  association. 
This  association  was  held  illegal,  because  it  violated  certain  statutes,  and,, 
among  others,  the  acts  against  lotteries.  A  large  amount  of  capital  had 
been  sunk,  and  the  managers  or  trustees  had  committed  some  gross  breaches 
of  their  trust.  This  suit  was  brought  by  a  share-holder  against  some  of 
the  trustees,  to  compel  them  to  carry  out  the  trusts,  and  to  make  them 
liable  for  the  sums  lost  through  their  breaches  of  trust.  The  questions, 
were  very  fully  discussed  by  Jessel,  M.  R.,  who  held  that  the  suit  could 
not  be  maintained.  He  said  (p.  193)  :  "Now,  the  authorities  on  the  subject 
seem  to  be  quite  plain  when  you  come  to  examine  them.  They  are  really  to- 
this  effect,  that  you  cannot  ask  the  aid  of  a  court  of  justice  to  carry  out 
an  illegal  contract;  but  in  cases  where  the  contract  is  actually  at  an  end,  or 
is  put  an  end  to,  the  court  will  interfere  to  prevent  those  who  have,  under 
the  illegal  contract,  obtained  money  belonging  to  other  persons  on  the  rep- 
resentation that  the  contract  was  legal,  from  keeping  that  money."  Again,  he- 
said  at  page  197:  "I  think  the  principle  is  clear  that  you  cannot  directly 
enforce  an  illegal  contract,  and  you  cannot  ask  the  court  to  assist  you  in 
carrying  it  out.  You  cannot  enforce  it  indirectly;  that  is,  by  claiming- 
damages  or  compensation  for  the  breach  of  it,  or  contribution  from  the- 
persons  making  the  profits  realized  from  it.  It  does  not  follow  that  you, 
cannot,  in  some  cases,  recover  money  paid  over  to  third  persons  in  pursu- 
ance of  the  contract;  and  it  does  not  follow  that  you  cannot,  in  other  cases,, 
obtain,  even  from  the  parties  to  the  contract,  moneys  which  they  have  be- 
come possessed  of  by  representations  that  the  contract  was  legal,  and  which 
belonged  to  the  persons  who  seek  to  recover  them;  but  I  am  bound  to  say 
I  think  there  is  no  pretense  for  saying  that  an  illegal  contract  will  in  any 
way  be  enforced  or  aided  by  a  court  of  law  or  equity."  In  Regby  v.  Connol, 
L.  R.  14  Ch.  Div.  482,  491,  a  member  of  a  "trades  union"  had  been  expelled 
for  violating  certain  rules  of  the  society  which  were  stringently  in  restraint 
of  trade,  and  he  brought  this  suit  to  be  restored  to  his  rights  of  membership 
and  the  property  rights  belonging  thereto.  Trades  unions  had  been  legalized 
by  an  act  of  Parliament  for  certain  specified  purposes,  but  not  for  all  pur- 
poses. The  court  held  that,  independent  of  the  statute,  the  society  and  the- 
articles  of  agreement  between  its  members  were  clearly  illegal,  because  con- 
trary to  public  policy;  that  the  suit  did  not  come  within  the  operation  of 
the  statute;  and  therefore  a  court  of  e(]uity  could  give  the  plaintiff  no 
relief.     In  Carey  v.  Smith,   11   Ga.  539,  547,  both  parties  had  been   engaged 


■669 


MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  402 


this  kind  are  some  contracts  made  upon  the  consideration 
of  an  improper  cohabitation  being  terminated,  and  those 
providing  for  children  born  from  such  cohabitation.^ 

in  transactions  violating  the  statutes  concerning  banking.  See  also  Johnson 
V.  Shrewsbury,  etc.,  R'y,  3  De  Gex,  M.  &  G.  914,  per  Knight  Bruce,  L.  J.; 
Aubin  V.  Holt,  2  Kay  &  J.  66,  70,  per  Page  Wood,  V.  C.s 

2  With  respect  to  contracts  upon  the  consideration  mentioned  in  the  text, 
see  the  following  cases,  cited  in  the  last  note:  Sismey  v.  Eley,  17  Sim.  1; 
Knye  v.  Moore,  1  Sim.  &  St.  61;  Matthew  v.  Hanbury,  2  Vern.  187;  Robin- 
son V.  Cox,  9  Mod.  263;  Clark  v.  Periara,  2  Atk.  333;  Marchioness  of  Annan- 
dale  V.  Harris,  2  P.  Wms.  432;  Hall  v.  Palmer,  3  Hare,  532.  It  is  now 
settled  that  an  agreement  of  separation  between  a  husband  and  wife  is  not 
illegal,  not  against  public  policy,  and  if  drawn  in  a  proper  form,  so  that 
there  are  two  parties  capable  of  contracting,  will  be  specifically  enforced  at 
the  suit  of  either  spouse:  Besant  v.  Wood,  L.  R.  12  Ch.  Div.  605,  620-624; 
Wilson  V.  Wilson,  1  H.  L.  Cas.  538;  Hunt  v.  Hunt,  4  De  Gex,  F.  &  J.  221, 
233;  Marshall  v.  Marshall,  27  Week.  Rep.  399;  Flower  v.  Flower,  20  Week. 
Rep.  231.    The  earlier  decisions  were  undoubtedly  the  other  way.     See  Aylett 


(«)  Miscellaneous  Cases. —  Agree- 
ments in  unreasonable  restraint  of 
trade  or  tending  to  monopoly  are  il- 
legal and  will  not  be  enforced  in 
equity:  American  Biscuit  Co.  v. 
Klotz,  44  Fed.  721;  Pacific  Postal 
Tel.  Cable  Co.  v.  Western  Union  Tel. 
Co.,  50  Fed.  493  (injunction);  Chi- 
cago Gas  Light  Co.  v.  Gas  Light  Co., 
121  HI.  530,  13  N.  E.  169,  2  Am.  St. 
Rep.  124  (specific  performance)  ; 
South  Chicago  City  Ry.  Co.  v.  Calu- 
met Electric  St.  R'y  Co.,  171  111.  391, 
49  N.  E.  576  (specific  performance). 
Trade-mark  cases. —  No  relief  against 
infringement  will  be  granted  when 
plaintiff's  trade-mark  or  trade-name 
is  a  fraud  on  the  public:  Manhattan 
Med.  Co.  V.  Wood,  108  U.  S.  218,  2 
Sup.  Ct.  436;  Worden  v.  California 
Fig  Syrup  Co.,  187  U.  S.  516,  23  Sup. 
Ct.  161 ;  Preservaline  Mfg.  Co  v. 
Heller  Chem.  Co.,  118  Fed.  103; 
Siegert  v.  Abbott,  61  Md.  276,  48  Am. 
Rep.  101;  Kenny  v.  Gillet,  70  Md. 
574,  17  Atl.  499;  Parlett  v.  Guggen- 
heimer,  67  Md.  542,  10  Atl.  81,  1  Am. 
St.  Rep.  416;  Messer  v.  The  Fadettes, 
168  Mass.  140,  60  Am.  St.  Rep.  371, 


46  N.  E.  407,  37  L.  R.  A.  721;  Mc- 
Vey  V.  Brendel,  144  Pa.  St.  235,  22 
Atl.  912,  29  Wkly.  Notes  Cas.  1,  27 
Am.  St.  Rep.  625,  13  L.  R.  A.  377; 
Lemke  v.  Dietz  (Wis.),  98  N.  W. 
936.  Contract  or  conveyance  against 
policy  of  United  States  land  laws  is 
illegal,  and  will  not  be  enforced: 
Dial  V.  Hair,  18  Ala.  798,  54  Am. 
Dec.  179  (specific  performance  re- 
fused) ;  Beck  v.  Flournoy  Live-Stock 
&  R.  E.  Co.,  65  Fed.  30,  12  C.  C.  A. 
497,  27  U.  S.  App.  618  (injunction 
against  interference  by  government 
refused).  A  contract  to  stifie  bidding 
at  a  judicial  sale  will  not  be  specifi- 
cally enforced:  Camp  v.  Bruce,  96  Va. 
521,  31  S.  E.  901,  70  Am.  St.  Rep. 
873,  43  L.  R.  A.  146.  A  champertous 
contract  will  not  be  specifically  en- 
forced: Casserleigh  v.  Wood,  119 
Fed.  309,  (C.  C.  A.).  An  injunctioa 
will  not  issue  at  the  suit  of  a  person 
conducting  an  illegal  business  to  re- 
strain a  police  captain  from  station- 
ing officers  continuously  on  the  prem- 
ises: Weiss  V.  Hcrlihy,  49  N.  Y. 
Supp.  81,  23  App.  Div.  608.  An  in- 
junction will  not  issue  to  restrain  a 


§  403  EQUITY    JURISPRUDENCE.  670 

§  403.  Limitations  —  Parties  not  in  Pari  Delicto.* — Upon  the 
general  doctrine  stated  in  the  preceding  paragraphs  con- 
cerning the  effect  of  fraud  and  illegality  upon  the  remedial 
rights  of  jDarties  seeking  the  aid  of  equity,  there  are  cer- 
tain limitations,  founded  mainly  upon  motives  of  policy, 
which  require  a  brief  mention.  "Wlierever  a  case  falls  within 
the  limitation,  and  not  within  the  general  rule,  the  court 
may  give  relief  against  the  improper  transaction,  or  may 
even  enforce  the  obligation  arising  from  the  tainted  agree- 
ment, at  the  suit  of  one  of  the  parties  thereto.  The  first 
of  these  limitations  may  be  given  in  the  following  general 
formula,  and  all  the  others  may  be  regarded  as  merely 
particular  deductions  or  corollaries  from  it.    Assuming  that 

V.  Ashton,  1  Mylne  &  C.  105;  Duke  of  Bolton  v.  Williams,  2  Ves.  138.  Ta 
Besant  v.  Wood,  L.  R.  12  Ch.  Div.  605,  Jessel,  M.  E,.,  reviews  the  authorities, 
and  discusses  at  length  the  legal  meaning  and  effect  of  "  public  policy."  lu 
Fisher  v.  Apollinaris  Co.,  L.  R.  10  Ch.  297,  302,  303,  it  was  held  by  the 
court  of  appeal,  as  a  general  rule,  that  where  an  offense  is  of  such  a  nature- 
that  the  offender  may  be  proceeded  against  either  criminally  or  civilly,  or 
both,  and  he  is  prosecuted  criminally,  there  is  nothing  illegal  nor  improper 
in  a  compromise  of  the  whole  proceedings;  such  agreement  of  compromise 
is  valid,  and  will  be  enforced  by  equity,  if  coming  within  the  equitable  juris- 
diction. It  should  be  observed,  however,  that  this  rule  is  confined  to  those' 
wrongs  which  are  capable  at  the  common  law  of  being  prosecuted  both 
civilly  and  criminally;  it  does  not,  of  course,  extend  to  offenses  for  which 
modern  statutes  have  given  an  action  at  law  for  damages,  such  as  homicide.^ 

postmaster  from  interfering  witn  Mineral  City,  58  Ohio  St.  430,  5L 
plaintiff's  mail,  when  plaintiff  has  N.  E.  28,  65  Am.  St.  Rep.  776. 
been  engaged  in  a  fraudulent  scheme:  (l»)  It  was  held,  however,  in  Wind- 
Public  Clearing  House  v.  Coyne,  121  hill  Local  Board  v.  Vint,  45  Ch.  Div. 
Fed.  927.  Further  illustrations:  351,  that  any  agreement  to  compro- 
Harton  v.  McKee.  73  Fed.  556;  mise  or  postpone  a  prosecution  for  a. 
Simonds  v.  East  Windsor  Elect.  R'y  public  offense  —  as  an  interference 
Co.,  73  Conn.  613,  48  Atl.  210;  Mey-  with  a  public  highway  —  is  illegal;, 
era  v.  Merillion,  118  Cal.  352,  50  Pac.  and  Fisher  v,  Apollinaris  Co.,  L.  R. 
662;  Garrett  v.  Kansas  City  Coal  10  Ch.  297,  so  far  as  it  holds  other- 
Min.  Co.,  113  Mo.  330,  20  S.  W.  965,  wise,  is  overruled.  See  further,  last 
35  Am.  St.  Rep.  713;  Brooks  v.  note,  under  §  930. 
Cooper,  50  N.  J.  Kq.  701,  26  Atl.  978,  (a)  This  paragraph  of  the  text  wa» 
35  Am.  St.  Rep.  793,  21  L.  R.  A.  617;  cited,  but  held  inapplicable  to  the 
Harvey  v.  Linville  Imp.  Co.,  118  N.  facts  of  the  case,  in  IVIilliaus  v.  Sally,. 
C.  693,  24  S.  K.  489,  54  Am.  St.  Rep.  43  S.  C.  318,  21  S.  E.  208,  885,  49' 
749,   32    L.    R.    A.   205;    Markley    v.  Am.  St.  Rep,  834. 


671  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  403 

a  contract  is  fraudulent,  or  against  public  policy,  or  illegal, 
still,  where  the  parties  to  it  are  not  in  pari  delicto,  and 
where  public  policy  is  considered  as  advanced  by  allowing 
either,  or  at  least  the  most  excusable  of  the  two.  to  sue 
for  relief,  relief  may  be  given  to  him,  either  against  the 
transaction  by  setting  it  aside  and  restoring  him  to  his 
original  position,  or  even,  in  some  ca.ses,  by  enforcing  the 
contract,  if  executory.^  **     The  second  limitation  I  cannot 

1  This  general  limitation  is  thus  stated  by  Knight  Bruce,  L.  J,,  in  the 
great  case  of  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  679 :  "  But  where 
the  parties  to  a  contract  against  public  policy,  or  illegal,  are  not  in  pari 
delicto  (and  they  are  not  always  so),  and  where  public  policy  is  considered 
as  advanced  by  allowing  either,  or  at  least  the  most  excusable  of  the  two, 
to  sue  for  relief  against  the  transaction,  relief  is  given  to  him,  as  we 
know  from  various  authorities."  I  cannot  at  present  enter  into  any  dis- 
cussion of  the  rule,  nor  describe  the  kinds  of  contracts  in  which  the  parties 
are  not  in  pari  delicto,  so  that  the  court  may  aid  the  one  who  is  compara- 
tively innocent.  The  whole  subject  is  discussed  in  a  most  able  and  ex- 
haustive manner,  the  authorities  are  reviewed,  and  the  contracts  to  which 
the  rule  applies  are  described  and  classified  by  Selden  and  Comstock,  JJ., 
in  Tracy  v.  Talmage,  14  N.  Y.  162,  67  Am.  Dec.  132,  and  by  some  of 
the  opinions  in  the  great  case  of  Curtis  v.  Leavitt,  15  N.  Y.  9.  See  also 
Osborne  v.  Williams,  18  Ves.  379;  Prescott  v.  Norris,  32  N.  H.  101;  White 
V.  Franklin  Bank,  22  Pick.  186;  Lowell  v.  Boston,  etc.,  R.  R.,  23  Pick.  32, 
34  Am.  Dec.  33;  Bellamy  v.  Bellamy,  6  Fla.  62,  103.  Among  the  ordinary 
instances  where  equity  will  set  aside  a  fraudulent  or  illegal  transaction  at 
the  suit  of  the  party  supposed  to  be  comparatively  innocent,  wholly  on 
grounds  of  public  policy,  is  the  familiar  case  of  a  borrower  suing  to  have 
the  usurious  contract  and  securities  surrendered  up  and  canceled,  and  where, 
in  a  composition  purporting  to  be  effected  on  terms  of  equality  by  an  insol- 
vent with  all  his  creditors,  secret  bargains  are  made  with  some  of  them  by 
which  they  are  to  obtain  more  favorable  terms  than  the  others,  or  where, 
in  an  assignment  by  an  insolvent,  a  secret  arrangement  is  made  with  the 
assignee  in  order  to  secure  benefits  out  of  the  property  to  the  debtor  or  his 
family,   such   agreements,  being   in   fraud   of  creditors,  will   be   set  aside  by 

(b)  This  paragraph  of  the  text  was  guilty  with  the  other  to  sue  for  re- 
cited and  followed  in  Duval  v.  Well-  lief,  see  post,  §  941,  and  notes;  Mis- 
man,  124  N.  Y.  158,  26  N.  E.  343  souri,  K.  &  T,  Co.  v.  Krumseig,  77 
(marriage  brokerage  contract)  ;  Don-  Fed.  32,  40  U.  S.  App.  620,  23  C.  C. 
nelly  v.  Rees  (Cal.),  74  Pac.  433  A.  1  (usurious  contract)  ;  Cox  v. 
(conveyance  obtained  by  undue  in-  Donnelly,  34  Ark.  762  (contract  in 
fluence);  Daniels  v.  Benedict,  50  Fed.  violation  of  the  homestead  act); 
347    (divorce  fraudulently  obtained).  Duval  v.  Wellman,  124  N.  Y.  158,  26 

For  cases  where  public  policy  is  N.  E.  343  (marriage  brokerage  con- 
promoted  by  allowing  a  party  equally  tract)  ;    Basket   v.   Mars,    115   N.    C 


§  403  EQUITY   JURISPRUDENCE.  672 

better  state  than  in  the  carefully  considered  language  of 
the  present  master  of  rolls,  Sir  George  Jessel,  in  a  very 
recent  case:  '*  You  cannot  ask  the  aid  of  a  court  of  justice 
to  carry  out  an  illegal  contract ;  but  in  cases  where  the  con- 
tract is  actually  at  an  end,  or  is  put  an  end  to,  the  court 
will  interfere  to  prevent  those  who  have,  under  the  illegal 
contract,  obtained  money  belonging  to  other  persons,  on 
the  representation  that  the  contract  was  legal,  from  keep- 

a  court  of  equity,  even  at  the  suit  of  the  insolvent  himself.  Such  relief, 
however,  is  plainly  not  given  out  of  consideration  for  the  debtor,  but  solely 
for  the  purpose  of  protecting  the  creditors:  See  Eastabrook  v.  Scott,  3 
Ves.  456;  Cullingworth  v.  Loyd,  2  Beav.  385,  390,  note;  McNeill  v.  Cahill,  2 
Bligh,  228;  Bellamy  v.  Bellamy,  6  Fla.  62,  103,  and  cases  cited.  The  follow- 
ing are  some  particular  illustrations:  In  Benyon  v.  Nettlefold,  3  Macn.  &  G. 
94,  a  gentleman  had  given  a  deed  containing  covenants  binding  him  to  pay  an 
annuity  to  trustees  for  the  benefit  of  a  certain  woman  during  her  life.  The 
real  consideration  of  this  deed  was  continued  furtive  cohabitation  with  the 
woman  as  his  mistress;'  but  another  consideration  was  stated  in  the  deed,  so 
that  it  was  valid  on  its  face.  An  action  at  law  was  brought  against  him 
to  recover  the  unpaid  amount  of  the  annuity.  It  was  well  settled  that  he 
would  have  a  perfect  defense  at  law  if  the  real  facts  as  to  the  consideration 
could  be  brought  out  in  evidence.  He  then  filed  a  bill  in  equity  for  the 
purpose  solely  of  obtaining  a  discovery  from  the  other  parties  as  to  the  real 
nature  of  the  consideration,  but  not  asking  any  relief  against  the  instrument. 
Upon  demurrer  to  the  bill  the  court  held  that  while  a  suit  for  relief  could 
not  be  maintained  under  these  circumstances,  a  suit  for  discovery  alone  in 
aid  of  the  defense  at  law  was  proper,  and  a  discovery  would  be  compelled. 
In  Osbaldiston  v.  Simpson  and  Bowles,  13  Sim.  513,  the  plaintiff  had  given 
to  Simpson,  for  the  benefit  of  Bowles,  his  promissory  notes,  which  said  de- 
fendants had  obtained  from  the  plaintiff  by  threatening  to  accuse  him  of 
having  cheated  Bowles  at  cards,  and  to  sue  him  for  the  penalties  for  that 
offense  under  a  certain  statute.  It  was  held  that  the  plaintiff  was  entitled  to 
a  decree  for  the  surrender  of  and  cancellation  of  the  notes,  even  on  the 
assumption  that  he  had  actually  been  guilty  of  the  alleged  cheating.  See 
also  Wortliington  v.  Curtis,  L.  R.  1  Ch.  Div.  419;  Davies  v.  London,  etc.,  Co., 
L.  R.  8  Ch.  Div.  469;  Odessa  Tramways  Co.  v.  Mendel,  L.  R.  8  Ch.  Div.  235; 
Ex  parte  Pyke,  L.  R.  8  Ch.  Div.  754. 

448,  20  S.   E.   733,  44  Am.   St.   Rep.  Davidson  v.  Carter,  65  Iowa,   117,  7 

403,  48  L.  R.  A.  842.       -  N.   W.  466;    Williams  v.   Collins,  07 

For   cases   where   the   parties   were  Iowa,  413,  25  N.   W.  682,   Anderson 

not  in  pari  delicto,  see  post,   §   942,  v.  Merideth,  82  Ky.  564;   Harper  v. 

and   notes;    Daniels    v.    Benedict,   50  Harper,  85  Ky.   160,  7  Am.   St.  Kep. 

i<'ed.   347;    Missouri,  K.  &  T.   Co.  v.  583,  and  note,  3  S.  W.  5;   Harris  v. 

Krumseig,   77    Fed.   32;    Donnelly   v.  Carmody,  131  Mass.  51,  41  Am.  Rep. 

RocB   (Cal.),  74  Pac.  433;  Hcrrick  v.  188;    O'Connor    v.    Ward,    GO    Miss. 

Lynch,    150   111.   283.   37    N.   E.   221;  1025;   llolliway  v.   llolliway,  77  Mo, 


673  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  403 

ing  that  money It  does  not  follow  that  you  can- 
not, in  some  cases,  recover  money  paid  over  to  third  persons 
in  pursuance  of  the  contract;  and  it  does  not  follow  that 
you  cannot,  in  other  cases,  obtain,  even  from  the  parties 
to  the  contract,  moneys  which  they  have  become  possessed 
of  by  representations  that  the  contract  was  legal,  and  which 
belong  to  the  persons  who  seek  to  recover  them."  ^  One  of 
the  parties  to  an  illegal  contract  may  therefore,  in  some 
cases,  maintain  a  suit  against  a  third  person  to  recover 
money  which  the  latter  has  received  under  the  contract.^ 

zSykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,  193,  197. 

3  Thus  if  a  trust  should  be  created  whereby  A  was  illegally  to  pay  money 
to  the  trustee,  B,  for  the  benefit  of  C,  the  beneficiary  could  not  compel  A  to 
make  the  payment;  but  if  A  should  voluntarily  pay  over  the  money  into 
the  hands  of  B,  the  beneficiary,  C,  could  then  maintain  a  suit  and  recover 
the  money,  and  B  could  not  set  up  the  illegality  of  the  original  trust  as  a 
defense,  and  thus  retain  the  property:  Thomson  v.  Thomson,  7  Ves.  470; 
Tenant  v.  Elliott,  1  Bos.  &  P.  3;  Farmer  v.  Russell,  1  Bos.  &  P.  296;  Sharp 
V.  Taylor,  2  Phill.  Ch,  801;  Joy  v.  Campbell,  1  Schoales  &  L.  328,  339; 
McBlair  v.  Gibbes,  17  How.  237;  Brooks  v.  Martir,  2  Wall,  81;  Tracy  v. 
Talmage,  14  N.  Y.  162,  67  Am,  Dec.  132.  In  Tenant  v.  Elliott,  1  Bos.  &  P. 
3,  there  was  an  illegal  contract  between  the  plaintiff  and  a  third  person. 
The  defendant  received  money  in  pursuance  of  the  contract  from  that  third 
person  to  the  use  of  the  plaintiff.  It  was  held  that  the  plaintiff  could  re- 
cover such  money  from  the  defendant,  although  he  could  not  have  enforced 
the  contract  against  the  third  person.  In  Farmer  v,  Russell,  1  Bos,  &  P. 
296,  there  was  an  illegal  contract  between  the  plaintiff  and  a  third  person, 
by  which  the  plaintiff  agreed  to  deliver  certain  counterfeit  coins  to  the 
third  person  for  a  stipulated  price.  The  defendants  were  carriers  employed 
by  the  plaintiff  to  deliver  the  articles  and  receive  the  price,  which  they  did. 
The  plaintiff  suing  the  carriers  to  recover  the  money  in  their  hands,  the 
defense  of  illegality  was  set  up,  but  overruled,  and  the  plaintiff  was  held 
«ntitled  to  maintain  the  suit.  Sharp  v.  Taylor,  2  Phill,  Ch.  801,  was  decided 
in  accordance  with  the  same  rule,  but  upon  quite  different  circumstances.  It 
has  been  regarded  as  a  leading  case,  and  has  been  followed  by   subsequent 

392;    Kleeman   v,    Peltzer,    17   Nebr.  L.   R.   A,   491;    Foley   v,   Greene.    14 

381,  22  N.  W.  793;  Ford  v.  Barring-  R,  I,  618,  51  Am.  Rep.  419;  Gorringe 

ton,  16  N,  Y.  285;  Eadie  v.  Slimmon,  v.  Reed,  23  Utah,   120,  63   Pac.  902, 

26  N.  Y.  9,  82  Am,  Dee.  395;   Boyd  90  Am,  St,  Rep,  692;   Harrington  v. 

v.  De  la  Montagnie,  73  N.  Y.  498,  29  Grant,  54  Vt.  236 ;  Malbye  v,  Malbye, 

Am.  Rep,  197;   Schoener  v.  Lissauer,  15  Wash,   648,  47   Pac.   16;    Clemens 

107  N.  Y.  112,  13  N.  E,  741;  Adams  v,  Clemens,  28  Wia.  637,  9  Am.  Rep. 

V,  Irving  Nat.  Bank,   116  N,  Y.  60G,  520. 
15  Am,  St.  Rep.  447,  23  N,  E,  7,  6 

Vol.  1  —  43 


§  403  EQUITY   JURISPRUDENCE.  674 

In  order,  however,  that  such  legal  relations  may  arise  in- 
cidentally and  collaterally  from  an  illegal  contract,  the 
illegality  itself  must  not  be  of  a  nature  intrinsically  im- 
moral or  evil;  it  must  be  an  illegality  resulting  from  mo- 
tives of  expediency  or  policy.  In  all  the  cases  where  a 
right  of  action  arising  collaterally  from  an  illegal  contract 
has  been  thus  recognized  and  enforced,  it  will  be  found  that 
the  agreement  was  illegal  because  opposed  to  some  statute, 
or  to  so-called  public  policy. 

decisions;  but  some  of  the  reasoning  of  Lord  Cottenham,  in  his  opinion,  is 
sharply  criticised,  and  shown  to  be  unsound,  by  Sir  George  Jessel,  in  the 
recent  case,  already  quoted,  of  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,  195, 
196.e  The  following  are  very  recent  examples  of  the  application  of  this  rule: 
In  Worthington  v.  Curtis,  L.  R.  1  Ch.  Div.  419,  423,  424,  a  father  took  out  a 
policy  of  life  insurance  in  the  name  of  and  on  the  life  of  his  son,  in 
whose  life  he  had  no  insurable  interest,  which  policy  was  in  fact  in- 
tended by  the  father  for  his  own  benefit  alone.  The  policy,  as  between 
the  company  and  the  assured.  Was  illegal  and  void,  under  certain  statutes. 
The  son  died  intestate,  and  the  company  voluntarily  paid  the  sum  in- 
sured by  the  policy  to  his  administrator.  Held,  that  although  neither 
the  father  nor  the  administrator  of  the  son  could  have  maintained  any 
action  on  the  policy  against  the  company  on  account  of  its  illegality,  yet 
the  money  having  been  voluntarily  paid  by  the  company,  as  between  the 
father  and  the  estate  of  the  son,  the  father  was  entitled  to  such  money,  and 
could  recover  the  same.  In  Davies  v.  London,  etc.,  Ins.  Co.,  L.  R.  8  Ch.  Div. 
469,  477,  the  manager  of  the  company  accused  one  of  their  agents,  named 
Evans,  of  embezzlement,  and  threatened  to  prosecute  him.  In  order  to  prevent 
the  threatened  prosecution,  the  plaintiff,  in  pursuance  of  an  agreement  to  that 
effect  with  the  manager,  deposited  a  sum  of  money  with  a  third  person,  and 
now  sues  to  recover  it  back.     The  company  defended  on  the  ground  that  the 

(c)  In  McDonald  v.  Lund,  13  the  illegal  transaction  were  depoa- 
Wash.  412,  43  Pac.  348,  it  was  held,  ited  with  a  third  party.  For  cases 
chiefly  in  reliance  on  these  English  illustrating  the  rule  which  some- 
cases,  that  when  plaintiff  had  been  times  permits  a  party  to  an  agree- 
engaged  with  defendant  in  an  illegal  ment  prohibited  by  statute,  or  ultra 
gaml)ling  business,  and  after  the  vires,  and  not  involving  a  malum  in 
business  had  terminated  left  in  de-  se,  to  recover  money  or  property  in 
fcndant's  hands  the  undivided  profits  the  hands  of  the  other  party,  see 
of  the  business,  under  an  agreement  post,  §  942,  latter  part  of  author's 
that  he  was  entitled  to  a  certain  note  2;  Bond  v.  Montgomery,  (Ark.), 
portion  thereof,  the  plaintiff  might  20  S.  W.  525,  citing  this  paragraph 
recover  the  sum  thus  left  on  deposit.  of  the  text  (statute  imposed  penalty 
It  is  plain  that  this  decision  is  quite  on  one  party  only,  who  was  the  part/ 
unsupported  by  the  English  cases  defendant  in  the  suit), 
cited,   in   all   of   which   the   fruits  of 


C75  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  404 

§  404.  Conclusion. —  The  special  rules  contained  in  the 
foregoing  paragraphs  will  serve  to  illustrate  the  meaning 
and  operation  of  the  principle,  He  who  comes  into  a  court 
of  equity  must  come  with  clean  hands;  but  they  by  no 
means  exliaust  its  scope  and  effect.  It  is  not  alone  fraud  or 
illegality  which  will  prevent  a  suitor  from  entering  a  court 
of  equity;  any  really  unconscientious  conduct,  connected 
with  the  controversy  to  which  he  is  a  party,  will  repel  him 
from  the  forum  whose  very  foundation  is  good  conscience.* 

agreement  was  illegal,  and  that  the  court  would  not  aid  a  particeps  criminvt. 
Held,  that  even  if  the  agreement  was  illegal,  as  compounding  a  felony,  the 
court  would  interfere  in  a  case  where  the  money  was  actually  in  the  hands 
of  trustees,  or  where  pressure  had  been  used  to  obtain  it.  The  court  said 
(p.  477)  :  "It  is  said  that,  assuming  the  contract  to  be  illegal,  Davies  waS' 
equally  a  party  to  that  illegal  contract,  and  that  therefore  the  court  will 
stay  its  hand,  and  then  the  maxim.  In  pari  delicto  melior  est  conditio  de- 
fendentis,  will  prevail.  But,  in  the  first  place,  there  is  great  difficulty  in 
applying  that  principle  to  a  case  where  money  has  been  placed  in  medio,  and 
where  the  court  must  do  something  with  it,  or  else  leave  it  to  be  locked  up 
forever.  In  the  next  place,  it  appears  to  me  to  be  clear  that  illegality 
resulting  from  pressure,  and  illegality  resulting  from  an  attempt  to  stifle  a 
prosecution,  do  not  fall  within  that  class  of  illegalities  which  induce  the 
court  to  stay  its  hand,  but  are  of  a  class  in  which  the  court  has  actively 
given  its  assistance  in  favor  of  the  oppressed  party,  by  directing  the  money 
to  be  repaid."  He  cites,  as  sustaining  this  conclusion,  the  case  of  Williams 
v.  Bayley,  L.  R.  1  H.  L.  200;  and  the  case  of  Osbaldiston  v.  Simpson,  13 
Sim.  513,  the  facts  of  which  are  stated  ante,  is  also  directly  in  point.  See 
also  Ex  parte  Pyke,  L.  R.  8  Ch.  Div.  754,  in  which  it  was  held  that  money 
loaned  to  enable  the  borrower  to  pay  a  bet  illegal  by  statute  could  be 
recovered  back.  For  another  and  different  mode  in  which  the  general  limita- 
tion described  in  the  text  may  operate,  see  Powell  v.  Knowler,  2  Atk.  224, 
A  and  B  had  made  an  agreement  for  the  division  and  conveyance  to  each 
other  of  parts  of  certain  land  which  they  expected  to  recover.  This  contract 
was  champertous  and  illegal,  and  could  not,  as  a  contract,  be  enforced.  But 
one  of  the  parties,  who  had  thus  agreed  to  convey  a  portion  of  the  land  to 
the  other,  by  a  clause  in  his  will  directed  the  agreement  to  be  performed, 
and  created  a  trust  for  that  purpose.  It  was  held  that  the  trust  thus  created 
by  the  will  should  be  enforced  against  the  trustee,  although  the  original 
contract  was  also  thereby  specifically  performed. 

(a)  The  text  is  (juoted  in  Brotzman'a  Appeal,  119  Pa.  St.  645,  13  Atl.  483, 


§^>5 


E^rrrr  juBisPBurKxca, 


UiO 


SECTION  V. 

EQUALITY  IS   EQUITY. 


U 


5  41. 


-  eommoa. 

Aiwss;  liabilitj-  of  estat*'  of  I'.twased  ;oint  debtor. 
:  insohrmt  estaites:  nisrs-halirg  of  a*5<n*, 
:  l(^paeies:  apporticmment  of  liens:  appoir.tu'.ent  ua- 

po^gners;  oontzibataQD  among  co-sureties  au<l  ccmxxi- 


f  4 


It?  Gener^:  ^Te-nin£:. 


TTe  hnve  se^u  iu  the  open- 
-v.ictoyy  chapter  that  the  notion 
^'  —  ^quum — lay  at  the  very 
^        ceived  of  by  the  Eonian 
outset  incorporated 
into  the  eqnity  ; v  .; . .    ...  _. .  .:.... ..  by  the  English  court 

of  chaneery,  and  has  been  perpetnated  in  all  of  its  doctrines 
into  which  the  i:  y  enter,  until  the  present 


of  eqnality  or  in 
foundation  of  t' 
jurists;  the  sac 


day.    While  the 
Tiirhts  of  a  pers 
ec":ry  rather  re  _       ? 
rights  of  a'. 
interest  ^ 
or  Ecn::;.  ^. -.._-.,. 
applioaiion.    It  is  : 
several  important  and  distinctive  ::es  of  the  eqnity 

jnrispmdence.  But  tliis  is  not  all.  It  furnishes  a  practical 
rule  for  the  smidance  of  equity  courts  in  their  administra- 
tion of  reliefs,  whenever  they  obtain  jurisdiction  over  a 
great  variety  of  cases,  unless  some  compulsory  dogma  of 
the  law  stands  in  the  wav.    I  shall  brieflv  mention  the  im- 


:        '         :ected  the 

. .; ; .   :.!--.  .. .  r :  .^ . .  individual. 

:  tains,  as  far  as  possible,  the 

ly  any  common  bond  of 

'_  rinoiple,  Eqnality  is  equity. 

;  c    '  very  wide  and  general 

:  conceded  source  of 


<•)  Sertioos  406-112  are  cited  in  Cunpaa  t.  Detitnt  DriTing  Qub  (Midu), 
»3  X.  W.  267. 


677  EQU.AXITY    IS    EQUITY.  §  406 

portant  equitable  doctrines  whicli  are  derived  from  this 
principle,  and  indicate  a  fe^r  of  the  cases  in  which  it  oper- 
ates as  a  rule  controlling  the  administration  of  reliefs. 

§  406.  Is  the  Source  of  Certain  Equitable  Doctrines  —  Pro 
Rata  Distribution  and  Contribution. —  "Wherever  a  nnmber  of 
persons  had  separate  claims  against  the  same  indi\'idnal 
or  the  same  fund,  the  law  generally  gave  certain  classes  of 
such  claimants  a  complete  precedence,  even  to  the  exhaus- 
tion of  the  fund  if  necessary,  over  the  others,  arising  solely 
from  the  form  of  their  security;  as.  for  example,  bond  and 
other  specialty  creditors  over  simple  contract  creditors. 
Also,  among  several  persons  having  claims  of  the  same 
grade  against  a  single  individual  or  fund,  the  one  who  by 
Ms  superior  activity,  either  by  means  of  action  and  judg- 
ment or  not.  obtains  payment  of  his  demand  the  first  in 
order  of  time,  is  entitled  at  law  to  the  precedence  thus 
acquired  over  the  others,  even  though,  they  should  thereby 
be  prevented,  in  whole  or  in  part,  from  procuring  satis- 
faction. Conversely,  it  is  a  familiar  doctrine  of  the  law. 
that  when  a  creditor  has  a  single  claim  against  several 
persons,  each  of  such  debtors  is  regarded  as  so  completely 
and  individually  liable  that  the  creditor  may  enforce  pay- 
ment of  the  entire  demand  from  any  one  of  the  number. 
The  law  will  not  interfere  with  the  action  of  the  creditor ; 
it  will  not  compel  him  in  any  manner  to  obtain  satisfaction 
from  all  of  the  debtors  pari  passu;  and  ait^r  one  of  the 
number  had  thus  been  obliged  to  pay  the  whole  amount,  the 
ancient  common  law.  prior  to  its  adoption  of  doctrines 
borrowed  from  equity,  failed  to  give  him  any  right  of  re- 
course upon  his  co-debtors  by  means  of  which  the  burden 
might  finally  be  distributed  among  them  all  in  just  propor- 
tions. The  rules  of  the  modem  law  giving  such  right  of 
reimbursement  are  a  direct  importation  from  the  equity 
jurisprudence.  Finally,  the  common  law,  prior  to  statu- 
tory changes,  exhibited  a  decided  preference,  in  fact  leaned 
very  strongly,  in  favor  of  joint  ownership  over  ownership 
in  common,  and  in  favor  of  a  joint  right  among  creditors 


§  407  EQUITY   JURISPRUDENCE.  678 

over  a  several  right,  and  a  joint  liability  among  debtors 
over  a  several  or  joint  and  several  liability,  with  all  the 
legal  consequences  of  '*  survivorship,"  and  of  an  extinction 
of  the  right  or  liability  on  the  part  of  any  one  of  the  credi- 
tors or  debtors  who  dies.  Under  all  these  conditions  of 
fact,  equity  proceeded  upon  a  very  different  principle,  upon 
the  principle  that  equality  is  equity,  that  the  right  or  burden 
should  be  equalized  among  all  the  persons  entitled  to  partici- 
pate. It  must  not  be  understood,  however,  that  a  court 
of  equity  would  always  directly  interfere  with  parties  under 
the  circumstances  above  mentioned,  for  the  purpose  of 
carrying  out  the  principle  of  equality;  it  could  not,  for 
example,  restrain  a  creditor  from  prosecuting  liis  legal 
■demand  by  legal  means,  merely  on  the  ground  that  the  re- 
sult would  give  him  a  precedence  over  others;  in  other 
words,  the  principle  of  equality  is  equity  was  not  of  itself 
the  source  of  an  equitable  jurisdiction  which  would  not 
otherwise  have  existed.  The  true  doctrine  is,  that  wher- 
ever a  court  of  equity,  upon  any  ground  of  equitable  cog- 
nizance, acquires  jurisdiction  over  a  case  falling  under 
the  general  condition  of  fact  mentioned  above,  it  will  apply 
the  principle  of  equality  in  determining  the  collective  rights 
and  liabilities  of  all  the  parties. 

§  407.  Under  the  limitation  last  stated,  that  the  subject- 
matter  properly  belongs  to  the  equitable  jurisdiction,  the 
following  general  principle  may  be  regarded  as  firmly 
established  and  of  wide  application:  Whenever  several 
persons  are  all  entitled  to  participate  in  a  common  fund, 
or  are  all  creditors  of  a  common  debtor,  equity  will  award 
a  distribution  of  the  fund,  or  a  satisfaction  of  the  claims, 
in  accordance  with  the  maxim.  Equality  is  equity ;  in  other 
words,  if  the  fund  is  not  sufificient  to  discharge  all  claims 
upon  it  in  full,  or  if  the  debtor  is  insolvent,  equity  will 
incline  to  regard  all  the  demands  as  standing  upon  an  equal 
footing,  and  will  docT'oe  a  pro  rata  distribution  or  payment. 
On  the  other  hand,  whenever  a  common  liability  rests 
upon  several  persons  in  favor  of  a  single  claimant,  equity 


679  EQUALITY    IS   EQUITY.  §  408 

will  enforce  sucli  liability  upon  all  tlie  class  in  accordance 
with  the  same  maxim,  Equality  is  equity.  It  will  apply 
the  maxim  either  directly,  by  apportioning  the  burden 
ratably  among  all  the  individuals  upon  whom  the  common 
liability  rests,  or  indirectly,  by  giving  a  right  of  contribu- 
tion to  the  member  of  the  class  from  whom  a  payment  of 
the  whole  demand  has  been  obtained,  and  enabling  him  to 
recover  contributory  shares  of  the  amount  from  the  other 
members  of  the  class,  by  which  means  the  entire  burden  is 
finally  adjusted  upon  and  among  them  all.  It  will  be  easily 
seen  upon  examination  that  this  comprehensive  principle  of 
equity  lies  at  the  foundation  of  several  well-settled  doctrines 
of  the  jurisprudence,  and  that  it  furnishes  the  rule  upon 
which  a  court  of  equity  proceeds  to  award  its  relief  in 
numerous  cases  which  do  not  fall  within  either  of  these 
special  doctrines. 

§  408.  Ownership  in  Common —  One  of  the  most  remark- 
able illustrations  of  the  principle,  being  in  direct  antago- 
nism with  a  specially  favorite  dogma  of  the  old  common 
law,  is  seen  in  the  preference  which  equity  gives  to  owner- 
ship in  common  over  joint  ownership  of  lands.  It  may  be 
stated  as  a  general  proposition  that  equity  alivays  leans  in 
favor  of  ownership  in  common,  and  wherever  it  is  possible 
to  do  so,  will  hold  an  ownership  to  be  in  common,  and 
thereby  disregard  the  legal  right  of  survivorship,  although 
at  law  the  ownership  would  be  strictly  joint.  It  was  an 
invariable  rule  of  the  common  law  that  when  purchasers 
take  a  conveyance  to  themselves  and  their  heirs,  they  will 
be  joint  tenants,  and  upon  the  death  of  one  of  them  the 
estate  will  go  to  the  survivor.  The  same  rule  prevails  in 
equity,  unless  circumstances  exist  from  which  a  contrary 
intention  of  the  parties  may  be  presumed,  enabling  a  court 
of  equity  to  disregard  the  legal  rule.^    The  same  is  true  of 

1  In  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  290,  pi.  3,  Sir  Joseph  Jekyll,  M.  E., 
■said  that  "  where  two  or  more  purchase  land  and  advance  the  money  in  equal 
proportions,  and  take  a  conveyance  to  them  and  their  heirs,  they  will  be  held 
joint  tenants  in  equity,  as  well  as  at  law,  upon  this  principle,  that  it  may  be 
presumed  they  intended  to  purchase  jointly  the  chance  of  survivorship.     The 


§  408  EQUITY   JURISPRUDENCE.  680 

a  joint  contract  to  purcliase  land,  made  by  two  or  more 
vendees,  where  they  have  paid  or  agreed  to  pay  the  pur- 
chase price  in  equal  proportions.  Equity  would  regard 
their  right  as  a  joint  one,  and  upon  the  death  of  one  vendee 
would  not  decree  a  conveyance  to  the  survivor  and  the 
heirs  of  the  deceased  vendee  as  owners  in  common.^  Al- 
though the  legal  rule  was  allowed  to  operate  under  these 
special  circumstances,  still,  equity  leans  very  strongly 
against  joint  ownership.  Whenever  circumstances  occur 
from  which  it  can  reasonably  be  implied  that  a  tenancy 
in  common  was  intended,  a  court  of  equity  will  hold  the 
ownership  to  be  in  common,  and  will  disregard  the  legal 
right  of  survivorship  by  declaring  the  survivors  to  be  trus- 
tees of  the  legal  estate  for  the  representatives  of  the  de- 
ceased purchaser  or  owner.  In  pursuance  of  this  view, 
the  doctrine  was  well  settled,  long  previous  to  all  legisla- 
tion on  the  subject,  that  where  two  or  more  purchase  lands 
and  advance  or  agree  to  pay  the  purchase-money  in  unequal 
proportions,  this  makes  them  in  the  nature  of  partners,  and 
however  the  legal  estate  may  survive  on  the  death  of  one 
of  them,  the  survivor  will  be  considered  in  equity  as  only  a 
trustee  for  the  representatives  of  the  other,  in  proportion 
to  the  sums  advanced  by  each  of  them.^  *"  This  equitable 
doctrine  is  always  applied  to  mortgagees.    Where  money  is 

rule  of  law,  therefore,  not  being  repugnant  to  the  presumed  intention  of  the 
parties,  will  be  followed  in  equity."  See  also  Taylor  v.  Fleming,  cited  in  York 
V.  Eaton,  Freem.  23;  Rigden  v.  Vallier,  3  Atk.  735,  2  Ves.  Sr.  258;  Harris  v. 
Fergusson,  16  Sim.  308. 

2Aveling  v.  Knipe,  19  Ves.  441,  per  Sir  William  Grant,  M.  R.;  Davis  v. 
Symonds,  1  Cox,  402. 

8  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  294,  pi.  3,  1  Lead.  Cas.  Eq.,  4th  Am.  ed., 
264,  268;  Rigden  v.  Vallier,  3  Atk.  735,  2  Ves.  Sr.  258;  Duncan  v.  Forrer,  6 
Bin'n.  193,  196;  Gaines  v.  Lessee  of  Grant,  5  Binn.  119,  120;  Currie  v.  Tibb's 
Heirs,  5  T.  B.  Mon.  440,  443;  Overton  v.  Lacy,  6  T.  B.  Mon.  13,  15,  17  Am. 
Dec.  Ill;  Cuyler  v.  Bradt,  2  Gaines  Cas.  326;  Mayburry  v.  Bricn,  15  Pet. 
21,  36.  The  soundness  of  tliis  distinction  between  equal  and  imoqual  advances 
has  been  doubted.  See  note,  by  Mr.  Vesey,  to  Jackson  v.  Jackson,  9  Ves. 
597;  but  the  doctrine  is  expressly  sustained  and  approved  by  the  high  au- 
thority of  Lord  St.  Leonards.     See  Sugdcn  on  Vendors,  11th  cd.,  p.  902. 

(a)   fcice  ralmer  v.  Rich,    (1897)    1  Ch.  134,  143. 


681  EQUALITY    IS    EQUITY.  §  408 

advanced  by  two  or  more  persons,  no  matter  whether  in 
equal  or  unequal  proportions,  and  they  take  a  mortgage  to 
themselves  jointly,  in  law  their  estate  is  joint,  and  on  the 
death  of  one  the  debt  and  the  security  would  belong  wholly 
to  the  survivor.  In  equity,  however,  the  interest  of  the 
mortgagees  is  in  common,  and  on  the  death  of  one  the  sur- 
vivor is  held  a  trustee  for  the  personal  representatives  of 
the  deceased  mortgagee.*  These  equitable  doctrines,  draw- 
ing such  a  distinction  between  conveyances,  contracts  for 
purchase,  and  mortgages  at  law  and  in  equity,  were  estab- 
lished before  any  statutes  had  changed  the  legal  view,  but 
they  have  become  unnecessary  and  obsolete  in  the  United 
States,  in  consequence  of  modern  legislation.  This  legis- 
lation throughout  all  the  states  has  declared  that  a  convey- 
ance of  land  to  two  or  more  grantees  shall,  unless  a  con- 
trary intention  is  clearly  expressed,  create  an  ownership  in 
common,  and  not  a  joint  ownership.  As  the  original 
doctrine  of  equity  is  thus  incorporated  into  the  law  by 
statute,  there  is  no  longer  any  need  of  the  equitable  rule 
as  above  described.  Furthermore,  either  as  an  inference 
from  the  statutes,  or  from  the  gradual  adoption  of  equitable 
principles,  the  right  and  interest  of  two  or  more  vendees 
in  a  contract  for  the  purchase  of  land  is  no  longer  strictly 
joint,  even  at  law,  in  a  great  majority  of  the  states;  that 
is,  the  right  and  interest  of  the  heirs  and  representatives 
of  a  deceased  vendee  are  fully  recognized  and  protected. 
Finally,  by  the  equitable  theory  of  the  mortgage,  which,  as 
has  been  shown,  prevails  in  nearly  all  the  states,  the  in- 
terest of  the  mortgagee  being  regarded  as  personal  prop- 
erty, and  not  as  an  estate  in  the  land,  the  right  of  two  or 
more  mortgagees  is  not  strictly  joint,  when  considered  with 
reference  to  third  persons,  or  even  to  the  mortgagor  him- 
self. 

4  Petty  V.  StyAvard,  1  Ch.  Rep.  3,  1  Eq.  Cas.  Abr.  290;  Rigden  v.  Vallier,  2 
Ves.  Sr.  258;  Morley  v.  Bird,  3  Ves.  631,  per  Lord  Alvanley,  M.  R. ;  Robinson 
V.  Preston,  4  Kay  &  J.  505,  511;  Randall  v.  Phillips,  3  Mason,  378,  384; 
Appleton  V,  Boyd,  7  Mass.  131,  134;  Goodwin  v.  Richardson,  11  Mass.  4G9j 
Kinsley  v.  Abbott,  19  Me.  430,  434. 


§  409  EQUITY    JURISPKUDENCE.  682 

§  409.  Joint  Liability  —  Death  of  a  Joint  Debtor. — ADotlier 
admirable  illustration  of  the  principle  that  equality  is 
equity  is  shown  in  the  case,  analogous  to  the  one  last  de- 
scribed, of  the  mode  in  which  equity  treats  a  liability  aris- 
ing out  of  contract  joint  at  law.  It  is  one  of  the  oldest  and 
most  familiar  doctrines  of  the  law,  that  when  two  or  more 
persons  promise  or  bind  themselves  to  pay  a  sum  of  money, 
or  to  do  any  other  act,  their  obligation  and  liability  are 
joint.  It  followed  from  the  legal  conception  of  a  joint  obli- 
gation that  when  one  of  the  joint  debtors  dies,  the  liability 
on  his  part  and  on  the  part  of  his  estate  ipso  facto  ceases, 
and  the  only  obligation  for  the  entire  debt  rests,  at  law, 
upon  the  survivor  or  survivors;  he  or  they  alone  could  be 
sued  at  law  by  the  creditor.^  The  injustice  which  might  re- 
sult from  this  purely  technical  rule  of  the  law  is  very  ap- 
parent. The  doctrine  of  equity  is  quite  different.  Presum.- 
ing  upon  the  reasonable  presumption  that  it  is  the  inten- 
tion of  the  parties  in  every  such  agreement  that  the  credi- 
tor shall  have  the  several  as  well  as  the  joint  obligation  of 
each  debtor  as  a  security  for  the  payment  or  performance, 
equity  declares,  as  a  general  rule,  that  every  contract  merely 
joint  at  law  shall  be  regarded,  as  against  the  debtor  parties, 
a  joint  and  several  undertaking,  creating  a  joint  and  severjil 
obligation.  As  a  consequence  of  this  equitable  view  of  the 
obligation,  the  doctrine  is  settled,  that  upon  the  death  of 
one  of  the  debtors  the  liability  does  not  remain  upon  the 
survivors  alone.  If  the  survivors  or  survivor  are  insol- 
vent, or  if  the  creditor  has  exhausted  his  ordinary  legal 
remedies  against  them  in  vain,  by  means  of  a  judgment  and 
an  execution  returned  unsatisfied,  then  such  creditor  may 
maintain  a  suit  in  equity  against  the  personal  representa- 
tives of  the  deceased  debtor,  and  enforce  payment  out 
of  his  estate.^    In  England,  the  doctrine,  as  settled  by  the 

1  Kx  parte,  Koiidall,  17  Ves.  525;  Gray  v.  Chiswell,  9  Vcs.  118;  Weaver  v 
Sliryock,  0  Scr^.  &  11.  202,  2G4 ;  Cairns  v.  O'BIencss,  40  Wis.  469;  Jones  \ 
.Kcf'p,  2.3  Wis.  45;  Morehouse  v.  Ballou,  10  Barb.  289. 

i!  V'oorliis  V.  (Child's  lOx'rs,  17  N.  Y.  354;  Ilichter  v.  Poppenhausen,  42  N,  Y 


683  EQUALITY   IS   EQUITY.  §  409 

modern  decisions  is  still  broader  and  more  efficient.  The 
creditor  is  entitled  to  sue  the  personal  representatives  of 
the  deceased  debtor  in  equity  at  once,  without  attempting, 
much  less  exhausting,  any  legal  remedy  against  the  sur- 
vivor. In  other  words,  the  creditor  has  at  all  times  the 
option  to  sue  the  survivor  at  law  or  the  representatives  of 
the  deceased  in  equity,  whether  the  survivors  are  solvent 
or  not;  and  this  rule  has  been  adopted  in  some  of  the 
American  states.^    In  certain  of  the  states,  the  common- 

373;  Pope  v.  Cole,  55  N.  Y.  124,  14  Am.  Rep.  198;  Lane  v.  Doty,  4  Barb.  534; 
Bentz  V.  Thurber,  1  Thomp,  &  C.  645;  Yates  v.  Hoffman,  5  Hun,  113;  Masten 
V.  Blackwell,  8  Hun,  313;  Bradley  v.  Burwell,  3  Denio,  61;  Maples  v.  Geller, 
1  Nev.  233,  237,  239 ;  Fowler  v.  Houston,  1  Nev.  469,  472 ;  Barlow  v.  Scott's 
Adm'r,  12  Iowa,  63;  Pecker  v.  Cannon,  11  Iowa,  20;  Marsh  v.  Goodrell,  11 
Iowa,  474;  Williams  v.  Scott's  Adm^r,  11  Iowa,  475;  People  v.  Jenkins,  17  Cal. 
500;  Humphreys  v.  Crane,  5  Cal.  173;  May  v.  Hanson,  6  Cal.  642  (but  see 
Bank  of  Stockton  v.  Howland,  42  Cal.  129)  ;  Hamersley  v.  Lambert,  2  Johns. 
Ch.  509,  510;  Hunt  v.  Rousmaniere,  8  Wheat.  212,  213,  1  Pet.  16;  Devaynes 
V.  Noble,  1  Mer.  538,  539;  Ex  parte  Kendall,  17  Ves.  514,  526,  527;  Ex  parte 
Ruffiu,  6  Ves.  125,  126;  Gray  v.  Chiswell,  9  Ves.  118;  Campbell  v.  Mullett,  2 
Swanst.  574,  575;  Cowell  v.  Sikes,  2  Russ.  191;  Towers  v.  Moor,  2  Vern.  tf8; 
Simpson  v.  Vaughan,  2  Atk.  31. 

3  Wilkinson  v.  Henderson,  1  Mylne  &  K.  582;  Braithwaite  v.  Britain,  1 
Keen.  219;  Brown  v.  Weatherby,  12  Sim.  6,  11;  Devaynes  v.  Noble,  2  Russ. 
&  M.  495;  Thorpe  v.  Jackson,  2  Younge  &  C.  553,  561,  562;  Freeman  v. 
Stewart,  41  Miss.  138.  In  Indiana  it  has  been  held  that  the  Code  of  Procedure, 
by  abolishing  the  distinctions  between  legal  and  equitable  actions,  and  intro- 
ducing the  equitable  doctrines  concerning  parties,  and  providing  for  tJie  sever- 
ance of  the  judgment,  has,  without  any  special  provision  on  the  subject, 
introduced  this  equitable  rule  into  the  law.  In  other  words,  it  is  settled  in 
that  state,  upon  a  just  interpretation  of  the  code,  that  upon  the  death  of  one 
joint  or  joint  and  several  debtor,  a  legal  action  will  lie  at  once  against  the 
survivors  and  the  administrators  or  executors  of  the  deceased  as  co-defendants : 
Braxton  v.  State,  25  Ind.  82;  Eaton  v.  Burns,  31  Ind.  390;  Klussmann  v. 
Copeland,  18  Ind.  306;  Voris  v.  State  ex  rel.  Davis,  47  Ind.  345,  349,  350; 
Myers  v.  State  ex  rel.  McCray,  47  Ind.  293,  297;  Owen  v.  State,  25  Ind.  371. 
In  Braxton  v.  State,  25  Ind.  82,  the  action  was  against  the  three  survivors 
and  the  administrators  of  the  deceased  obligors  on  a  bond.  After  stating  that 
there  were  no  special  provisions  on  the  subject  in  the  Indiana  code  (as  there 
are  in  some  of  the  states),  and  after  quoting  the  sections  concerning  forms  of 
action  and  parties  defendant,  Elliott,  J.,  proceeds:  "It  was  manifestly  the 
intention  of  the  legislature,  in  the  adoption  of  these  provisions,  to  afford  as 
far  as  possible  a  simple  and  direct  means  of  bringing  all  the  parties  having 
an  interest  in  the  controversy  before  the  court,  and  of  settling  all  their  rights 
in  a  single  litigation,  and  thereby  to  avoid  a  multiplicity  of  suits."  The  de- 
cision in  Voorhis  v.  Child's  Ex'rs,  17  N.  Y.  354,  was  expressly  disapproved. 


§  409  EQUITY    JURISPRUDENCE.  684'- 

law  dogma  concerning  joint  debtors  has  been  wholly  abro- 
gated. Special  provisions  of  their  codes  of  procedure, 
or  of  other  statutes,  expressly  authorize  a  legal  action  tO' 
be  brought  in  the  first  instance  against  the  survivors  and 
the  personal  representatives  of  the  deceased  joint  debtor, 
or  even  against  some,  any,  or  one  of  them,  at  the  option 
of  the  creditor  who  sues.^  There  is  one  important  excep- 
tion, as  established  by  the  courts  in  England  and  in  many 
of  the  United  States,  to  the  doctrine  that  equity  will  re- 
gard and  treat  a  joint  obligation  arising  from  contract  as 
joint  and  several,  so  as  to  render  the  estate  of  a  deceased 
debtor  liable  to  a  suit  in  equity  brought  by  the  creditor;, 
and  that  is,  where  the  deceased  debtor  is  a  surety.  It  is 
well  settled,  ^'  that  if  the  joint  obligor  so  dying  be  a 
surety,  not  liable  for  the  debt  irrespective  of  the  joint  obli- 
gation, his  estate  is  absolutely  discharged  both  at  law  and 
in  equity,  the  survivor  only  being  liable.  In  such  case, 
where  the  surety  owed  no  debt  outside  and  irrespective 
of  the  joint  obligation,  the  contract  is  the  measure  and 
limit  of  his  obligation.  He  signs  a  joint  contract  and  in- 
curs a  joint  liability,  and  no  other.  Dying  prior  to  his 
co-maker,  the  liability  all  attaches  to  the  survivor."^ 

In  these  cases  the  Indiana  court  has,  in  my  opinion,  interpreted  the  Code  of 
Procedure  in  accordance  with  its  true  spirit  and  intent.  The  same  construc- 
tion has  been  given  to  similar  sections  of  the  code,  and  the  same  rule  adopted 
by  the  supreme  court  of  California  in  the  very  recent  case  of  Bostwick  v. 
McEvoy,  55  Cal.  496. 

*IoLca:  Code,  §  2550;  Sellon  v,  Braden,  13  Iowa,  365.  The  Iowa  cases 
cited  in  the  preceding  note  under  this  paragraph  were  decided  before  the  pro- 
vision referred  to  was  enacted.  Kentucky :  Code,  §  39.  Missouri:  Code,  art. 
1,  §  7;  1  Wagner's  Stats.,  p.  269,  §§  1^.  Kansas:  Gen.  Stats.  1868,  chap. 
21,  §§  1-4.  Ohio:  Swann's  Rev.  Stats.  378;  Burgoyne  v.  Ohio  Life  Ins., 
etc.,  Co.,  5  Ohio  St.  586,  587. 

6  Getty  v.  Binsse,  49  N.  Y.  385,  388,  389,  10  Am.  Rep.  379;  Wood  v.  Fisk, 
63  N.  Y.  245,  20  Ara.  Rep.  528;  Pickersgill  v.  Lahens,  15  Wall.  140;  United 
States  V.  Price,  9  How.  92;  Harrison  v.  Field,  2  Wash.  (Va.)  136;  Weaver  v. 
Sliryock,  6  Serg.  &  R.  262,  264,  205;  Missouri  v.  Fank,  51  Mo.  98;  Simpson  v. 
Field,  2  Cas.  Ch.  22;  Sumner  v.  Powell,  2  Mcr.  30,  per  Sir  William  Grant, 
M.  R. ;  afllrmcd  on  appeal,  1  Turn.  &  R.  423,  per  Lord  Eldon;  OLhor  v.  Iveson, 
3  Drew.  177;  Richardson  v.  llorton,  6  Beav.  185;  Jones  v.  Beach,  2  De  Gex, 
M.  &  G.  880;  WiliiuT  v.  Cuncy,  2  De  Gex  &  S.  347.  In  some  of  the  states. 
however,  either  from  the  eirecL  of  special  statutes  or  from  a  diU'ereut  view  of 


<685  EQUALITY    IS    EQUITY.  §  410 

§  410.  Settlement  of  Insolvent  Estates  —  Marshaling  of  As- 
sets.*—  Another  remarkable  and  most  just  application  of 
the  principle,  often  leading  to  results  very  different  from 
those  produced  by  the  operation  of  legal  rules,  may  be  seen 
in  all  those  instances  where  a  court  of  equity  acquires 
jurisdiction,  from  any  cause,  to  wind  up,  distribute,  or 
settle  an  estate,  property,  or  fund  against  which  there  are 
a  number  of  separate  claimants.  One  example  is  that  of 
settling  the  affairs  of  an.  insolvent  partnership,  corpora- 
tion, or  individual  debtor  in  a  creditor's  suit  brought  by  one 
on  behalf  of  all  other  creditors,  where  the  assets  are  not 
sufficient  to  satisfy  all  demands  in  full;  the  court  always 
proceeds  upon  the  principle  that  equality  is  equity,  and  of 
apportioning  the  property  pro  rata  among  all  the  credi- 
tors.'' The  principle  is  carried  to  such  an  extent  in  the 
settlement  of  insolvent  partnerships,  and  partnerships 
where  one  of  the  members  has  died,  that  firm  creditors 
are  compelled  in  the  first  instance  to  resort  to  the  firm  as- 
sets, and  creditors  of  the  individual  partners  to  individual 
assets,  before  either  class  can  have  recourse  to  any  balance 
left  remaining  of  the  other  kind  of  fund.  A  second  example 
is  that  of  marshaling  the  assets  in  the  administration  of 
the  estates  of  deceased  persons.  At  the  common  law  certain 
classes  of  creditors  enjoyed  a  precedence  over  others,  and 
were  entitled  to  be  paid  in  full,  even  to  the  exclusion  of 
the  inferior  orders,  by  the  administrator  or  executor  out  of 

equity  taken  by  the  courts,  this  exception  has  not  been  adopted,  and  the  estate 
of  a  deceased  joint  surety  is  liable  in  the  same  manner  as  that  of  any  other 
deceased  joint  debtor.  See  Voris  v.  State,  47  Ind.  345,  349,  350;  Myers  v. 
State,  47  Ind.  293,  297. 

(a)  This  paragraph  of  the  text  is  a  statute  prescribing  a  different  or- 
cited  in  Blair  v.  Smith,  114  Ind.  Il4,  der,  should  be  distributed  to  aim- 
5  Am.  St.  Rep.  593,  15  N.  E.  817,  pie  contract  and  judgment  creditors 
822,  as  illustrating  the  allowance  of  alike.  "  Equity  .  .  .  imputes  no 
pecuniary  relief  in  equity.  particular   merit   to   diligence   luileda 

(b)  The  text  is  quoted  in  In  re  the  advantage  thereby  acquired 
Lord  &  Polk  Chemical  Co.,  7  Del.  Ch.  amounts  to  a  lien,  or  some  vestetl 
248,  44  Atl.  775,  holding  that  the  right  or  interest,  which  neither 
funds  of  an  insolvent  corporation  in  equity  or  law  will  allow  to  be  dis- 
a  receiver's  hands,  in  the  absence  of  turbed." 


§  411  EQUITY    JUEISPRUDENCE.  68G 

the  legal  assets  of  the  decedent's  estate,  according  to  their 
established  priority  of  right.  But  a  court  of  equity,  having 
obtained  jurisdiction  over  an  administration,  regards  all 
debts,  in  general,  as  standing  upon  an  equal  footing,  and  as 
entitled  to  payment  pro  rata  out  of  the  equitable  assets, 
if  the  estate  is  not  suflBcient  to  pay  them  all  in  full,  without 
any  reference  to  their  legal  right  of  priority.  In  order  to 
attain  this  result,  and  to  carry  out  the  principle  of  equality 
is  equity  in  administrations,  the  doctrine  of  marshaling 
assets  was  established. 

§  411.  Abatement  of  Legacies ;  Apportionment  of  Liens ;  Ap- 
pointment under  Trust  Powers ;  and  Contribution  among  Co-con- 
tractors and  Co-sureties. —  Among  the  other  doctrines  de- 
rived from  the  principle  that  equality  is  equity  as  their 
source  are  the  following:  The  abatement  of  legacies, 
whereby  a  pro  rata  deduction  is  made  from  all  legacies  of 
the  same  class  when  the  assets  are  insufficient  to  pay  all 
in  full.  It  is  true  that  the  principle  is  not  carried  out  with 
absolute  rigor  in  the  case  of  legacies,  since  two  different 
classes  are  admitted, —  the  **  general  "  and  the  *'  specific," 
the  latter  being  entitled  to  priority  of  payment.  But  the 
deduction  is  applied  to  all  those  which  belong  to  the  same 
class,  and  the  leaning  is  strongly  in  favor  of  placing  any 
particular  legacy  in  the  "  general  "  class.*  The  apportion- 
ment of  the  money  secured  by  mortgages  or  other  encum- 
brances among  the  various  owners  of  the  different  parcels 
into  wliich  the  mortgaged  premises  have  been  divided: 
"Whenever  a  mortgage  or  other  encumbrance  has  been 
placed  upon  a  tract  of  land,  and  the  tract  is  subsequently 
conveyed,  subject  to  the  mortgage,  in  parcels  to  different 
owners,  or  liens  or  other  interests  in  distinct  portions  of 
the  land  are  subsequently  acquired  by  different  persons, 
in  adjusting  the  payment  of  the  whole  mortgage  debt,  either 
voluiiiaiil}"  by  way  of  redemption,  or  forcibly  by  way  of 
foreclosure,  equity  applies,  unless  some  other  controlling 
equitable  consideration  interfere,  tlie  principle  of  equality; 

(a)  See  post,  §§    1135-1143. 


687  EQUALITY    IS    EQUITY.  §  411 

in  other  words,  equity  makes  a  pro  rata  apportionment 
among  all  the  owners  of  parcels  and  holders  of  liens  or 
interests."  It  should  be  observed,  however,  that  this  par- 
ticular application  of  the  principle  is  not  universal;  for 
in  several  of  the  states,  on  accoimt  of  other  assumed  equi- 
table considerations,  a  different  rule  has  been  adopted. 
The  whole  subject  is  examined  in  the  subsequent  chapter 
on  mortgages.''  The  execution  of  a  power  in  trust  when 
the  donee  has  failed  to  act  under  it:  A  power  in  trust 
partakes  so  much  of  the  nature  of  an  express  active  trust, 
that  if  the  donee  upon  whom  it  was  conferred  fails  to 
make  any  appointment  under  it,  a  court  of  equity  will  not 
suffer  the  power  to  wholly  fail,  but  will  carry  it  into  effect, 
in  accordance  with  its  own  principle  of  equality.^  Where 
a  power  in  trust  is  given  to  appoint  among  the  members  of 
a  designated  class,  as  among  '^  the  children  "  of  the  donee, 
and  the  like,  the  donee  upon  whom  the  power  is  conferred 
can  appoint  in  favor  of  any  one  of  the  class,  and  a  court 
of  equity  will  not  interfere  with  his  discretion.^  Where 
the  donee,  however,  fails  to  make  any  appointment,  and 
of  course  makes  no  selection  of  a  particular  beneficiary  out 
of  the  class,  a  court  of  equity  will  carry  out  the  power,  under 
the  principle  of  equality,  by  dividing  the  fund  subject  to 
the  power  in  equal  shares  among  all  the  persons  composing 
the  designated  class.^  ^  Finally,  the  most  important 
doctrine,  perhaps,  which  results  from  the  principle, 
Equality  is  equity,  is  that  of  contribution  among  joint 
debtors,  co-sureties,  co-contractors,  and  all  others  upon 
whom  the  same  pecuniary  obligation  arising  from  contract, 
express  or  implied,  rests.    This  doctrine  is  evidently  based 

lB^o^vn  v.  Higgs,  8  Ves.  570,  5  Ves.  495,  4  Ves.  708;  Harding  v.  Glyn,  1 
Atk.  4G9 ;  Salusbury  v.  Denton,  3  Kay  &  J.  529. 

2  See  cases  last  cited,  and  Willis  v.  Kymer,  L.  R.  7  Ch.  Div.  183. 

3  Willis  V.  Kymer,  L.  R.  7  Ch.  Div.  183;  Salusbury  v.  Denton,  3  Kay  &  J. 
529. 

(b)  The  text  is  cited  in  Coffin  v.  (d)  See  post,  §  1002,  as  to  powerB> 
Parker,  127  N.  Y.  117,  27  N.  E.  814.       in  trust. 

(c)  See  post,   §§    1221-122G. 


§§412,413  EQUITY   JURISPRUDENCE.  688 

upon  the  notion  that  the  burden  in  all  such  cases  should 
be  equally  borne  by  all  the  persons  upon  whom  it  is  im- 
posed, and  its  necessary  effect  is  to  equalize  that  burden 
whenever  one  of  the  parties  has,  in  pursuance  of  his  mere 
legal  liability,  paid  or  been  compelled  to  pay  the  whole 
amount,  or  any  amount  greater  than  his  proportionate 
share.  No  more  just  doctrine  is  found  in  the  entire  range 
of  equity;  and  although  it  is  now  a  familiar  rule  of  the 
law,  it  should  not  be  forgotten  that  its  conception  and  origin 
are  wholly  due  to  the  creative  functions  of  the  chancellor." 
§  412.  Conclusion. —  The  preceding  paragraphs  give  a 
sufficient  illustration  of  the  principle,  Equality  is  equity; 
and  they  demonstrate  the  fact  that  a  court  of  equity  en- 
deavors to  carry  the  maxim  into  operation  in  the  admin- 
istration of  remedies  whenever  jurisdiction  is  for  any 
cause  obtained  over  the  subject-matter  of  a  controversy. 
The  various  doctrines  which  I  have  mentioned  as  originat- 
ing from  this  principle,  and  the  cases  selected  as  examples 
of  its  operation,  will  be  fully  examined  in  the  subsequent 
chapters  of  this  work. 


SECTION  VI. 

WHERE  THERE  ARE   EQUAL  EQUITIES,  THE   FIRST  IN  ORDER  OP 
TIME  SHALL  PREVAIL. 

ANALYSIS. 

§  413.  Its  application. 

i  414.  Its  true  meaning;  opinion  in  Rice  v.  Rice. 

S  415.  Its  cflFect  upon  equitable  doctrines. 

§  413.  Its  Application.* —  The  ''  equities  '*  spoken  of  in 
this  maxim  embrace  both  equitable  estates,  interests,  and 
primary  rights  of  property,  such  as  the  cestui  que  trust's 
estate  in  any  species  of  trust,  the  mortgagee's  equitable 

(e)  See   §   1418.  This  passage  of           (a)  This    and    the    two    following 

the  text  is  quoted  in  Campau  v.  De-  paragraphs  of  the  text  are  oiled  and 

troit  Driving  Club  (Mich.),  98  N.  W.  quoted    in    Campbell    v.    Sidwell,    61 

2(57,  Ohio  St.  179,  55  N.  E.  G09. 


<)89  EQUAL    EQUITIES,    FIRST    IN    ORDER   OF    TIME.  §  414 

interest,  equitable  liens,  the  interest  of  the  assignee  under 
an  equitable  assignment,  and  the  like,  and  also  the  purely 
remedial  rights,  or  rights  to  some  purely  equitable  remedy, 
to  which  the  distinctive  name  ' '  equity  ' '  has  been  given  by 
modern  judges  and  text-writers ;  such,  for  example,  as  the 
■equitable  right  to  a  reformation.  With  respect  to 
^ '  equities  ' '  considered  in  this  comprehensive  manner,  and 
to  many  legal  interests,  the  maxim,  Qui  prior  est  tempore, 
potior  est  jure,  is  of  wide  and  important  application  both  in 
•equity  and  at  law. 

§  414.  Its  True  Meaning  —  Rice  v.  Rice. —  The  true  mean- 
ing and  effect  of  the  principle,  When  there  are  equal  equi- 
ties, the  first  in  order  of  time  shall  prevail,  have  often  been 
misunderstood ;  and  its  correct  signification  cannot  be  better 
•explained  than  by  employing  the  exact  language  used  by  a 
very  able  English  equity  judge,  in  a  recent  case,^  as  follows : 
**  What  is  the  rule  of  a  court  of  equity  for  the  determining 
the  preference  as  between  persons  having  adverse  equitable 
interests?  The  rule  is  sometimes  expressed  in  this  form. 
As  between  persons  having  only  equitable  interests,  qui 
prior  est  tempore,  potior  est  jure.  This  is  an  incorrect 
statement  of  the  rule,  for  that  proposition  is  far  from 
being  invariably  true.  In  fact,  not  only  is  it  not  universally 
true  as  between  persons  having  only  equitable  interests, 
but  it  is  not  universally  true  even  where  their  equitable 
interests  are  of  precisely  the  same  nature,  and  in  that 
respect  precisely  equal ;  as  in  the  common  case  of  two  suc- 

1  Rice  V.  Rice,  2  Drew.  73.  A  grantor  conveyed  land  without  receiving  his 
purchase-money,  but  the  receipt  of  it  was  indorsed  on  the  deed,  and  the  title 
deeds  were  delivered  to  the  grantee.  Of  course  a  vendor's  lien  at  once  arose 
as  security  for  the  unpaid  price,  which  was  at  least  valid  between  the  grantor 
and  the  grantee,  and  was  prior  to  any  equity  thereafter  created  by  the  grantee. 
The  grantee  afterwards  borrowed  money,  and  to  secure  its  payment  made  an 
equitable  mortgage  of  the  land  by  a  deposit  of  the  title  deeds  with  the  creditor. 
Held,  that  as  between  the  vendor's  lien  and  the  lien  of  the  equitable  mortgage, 
the  possession  of  the  title  deeds  by  the  grantee,  and  the  receipt  of  the  price 
indorsed  on  the  deed  of  conveyance,  operated  to  make  the  latter  lien  superior 
to  the  former,  and  thus  overcame  the  effect  of  priority.  The  two  equities 
were  not  equal.  In  his  opinion  the  vice-chancellor  used  the  language  quoted 
in  the  text. 

Vol.  1  —  44 


§  414  EQUITY    JURISPRUDENCE.  690 

cessive  assigmnents  for  a  valuable  consideration  of  a  rever- 
sionary interest  in  stock  standing  in  the  names  of  trustees, 
where  the  second  assignee  has  given  notice  [to  the  trustee] 
and  the  first  has  omitted  it.^  xAjiother  form  of  stating  the 
rule  is  this,  As  between  persons  having  only  equitable 
interests,  if  their  equities  are  equal,  qui  prior  est  tempore, 
potior  est  jure.  This  form  of  stating  the  rule  is  not  so 
obviously  incorrect  as  the  former.  And  yet,  even  this  enun- 
ciation of  the  rule,  when  accurately  considered,  seems  to  me 
to  involve  a  contradiction.  For  when  we  talk  of  two  per- 
sons having  equal  or  unequal  equities,  in  what  sense  do  we 
use  the  term  '  equity  '  ?  For  example,  when  we  say  that  A 
has  a  better  equity  than  B,  what  is  meant  by  that?  It 
means  only  that  according  to  those  principles  of  right  and 
justice  which  a  court  of  equity  recognizes  and  acts  upon, 
it  will  prefer  A  to  B,  and  will  interfere  to  enforce  the  rights 
of  A  as  against  B;  and  therefore  it  is  impossible  (strictly 
speaking)  that  two  persons  should  have  equal  equities  ex- 
cept in  a  case  in  which  a  court  of  equity  would  altogether 
refuse  to  lend  its  assistance  to  either  party  as  against  the 
other.  If  the  court  will  interfere  to  enforce  the  right  of  one 
against  the  other  on  any  ground  whatever,  say  on  the 
ground  of  priority  of  time,  how  can  it  be  said  that  the 
equities  of  the  two  are  equal?  i.  e.,  in  other  words,  how  can 
it  be  said  that  the  one  has  no  better  right  to  call  for  the 
interference  of  a  court  of  equity  than  the  other?  To  lay 
down  the  rule,  therefore,  with  perfect  accuracy,  I  think  it 
should  be  stated  in  some  such  form  as  this:  As  between 
persons  having  only  equitable  interests,  if  their  interests  are 
in  all  other  respects  equal,  priority  in  time  gives  the  better 
equity;  or,  Qui  prior  est  tempore,  potior  est  jure.  I  have 
made  these  observations,  not,  of  course,  for  the  purpose  of 
mere  verbal  criticism  on  the  enunciation  of  a  rule,  but  in 
order  to  ascertain  and  illustrate  the  real  meaning  of  the  rule 
itself.     And  I  think  the  meaning  is  this :  that  in  a  contest  be- 

2  Here  the  second  assignee  would  obtain  priority  over  the  first:     See  Lev* 
eridge  v.  Cooper,  3  Russ.  30. 


691  EQUAL,   EQUITIES,    FIRST    IN    ORDER   OF    TIME.  §  414 

tween  persons  having  only  equitable  interests,  priority  of 
time  is  the  ground  of  preference  last  resorted  to ;  i.  e.,  that  a* 
court  of  equity  will  not  prefer  the  one  to  the  other  on  the- 
mere  ground  of  priority  of  time,  until  it  finds,  upon  an 
examination  of  their  relative  merits,  that  there  is  no  other 
sufficient  ground  of  preference  between  them,  or  in  other 
words,  that  their  equities  are  in  all  respects  equal;  andl 
that  if  the  one  has  on  other  grounds  a  better  equity  than' 
the  other,  priority  of  time  is  immaterial."  In  examining 
into  the  relative  merits  (or  equities)  of  two  parties  having 
adverse  equitable  interests,  the  points  to  which  the  court 
must  direct  its  attention  are  obviously  these:  the  nature 
and  condition  of  their  respective  equitable  interests,  the 
circumstances  and  manner  of  their  acquisition,  and  the 
whole  conduct  of  each  party  with  respect  thereto.  And  in 
examining  into  these  points,  it  must  apply  the  test,  not 
of  any  technical  rule,  or  any  rule  of  partial  application, 
but  the  same  broad  principles  of  right  and  justice  which 
a  court  of  equity  applies  universally  in  deciding  upon 
contested  rights. "  ^  ^ 

3  I  add  to  the  foregoing  the  following  language  of  another  most  able  equity 
judge,  Lord  Westbury,  in  the  celebrated  case  of  Phillips  v.  Phillips,  4  De  Gex, 
F.  &  J.  208,  215:  "I  take  it  to  be  a  clear  proposition  that  every  conveyance- 
of  an  equitable  interest  is  an  innocent  conveyance;  that  is  to  say,  the  grant 
of  a  person  entitled  merely  in  equity  passes  only  that  which  he  is  justly 
entitled  to,  and  no  more.  If,  therefore,  a  person  seised  of  an  equitable  estate- 
(the  legal  estate  being  outstanding)  makes  an  assurance  by  way  of  mortgage^ 
or  grants  an  annuity,  and  afterwards  conveys  the  whole  estate  to  a  purchaser,. 
he  can  grant  to  the  purchaser  that  which  he  has,  viz.,  the  estate  subject  to  the 
mortgage  or  annuity,  and  no  more.  The  subsequent  grantee  takes  only  thai, 
which  is  left  in  the  grantor.  Hence  grantees  and  encumbrancers  claiming  Id 
equity  take  and  are  ranked  according  to  the  dates  of  their  securities ;  and  the 
maxim  applies.  Qui  prior  est  tempore,  potior  est  jure.  The  first  grantee  i& 
potior;  that  is,  potentior.  He  has  a  better  and  superior  —  because  a  prior  — 
equity.  The  first  grantee  has  a  right  to  be  paid  first,  and  it  is  quite  immaterial 
whether   the   subsequent  encumbrancers,   at   the   time  when   they   took   their 

(a)  The  greater  portion  of  this  in  Frost  v.  Wolf,  77  Tex.  455,  li> 
passage  is  quoted  in  Campbell  v.  Si'd-  Am.  St.  Rep.  761,  14  S.  W.  440  j 
well,  61  Ohio  St.  179,  55  N.  E.  609.  both   cases   presenting   good   illustra- 

(b)  This  portion  of  the  opinion  in  tions  of  the  meaning  of  "unequal" 
Rice  V.  Rice  is  quoted  in  Dueber  equities.  The  text  is  cited  in  Him- 
Watch-Case  Mfg.  Co.  v.  Dauglierty,  rod  v.  Oilman,  147  111.  293,  35  N.  E, 
62  Ohio  St.  589,  57  N.  E.  455,  and  373. 


§  415  EQUITY   JURISPRUDENCE.  692 

§  415.  Its  Effect. —  It  follows  from  this  explanation  of 
the  principle  that  when  several  successive  and  conflicting 
claims  upon  or  interests  in  the  same  subject-matter  are 
wholly  equitable,  and  neither  is  accompanied  by  the  legal 
estate,  which  is  held  by  some  third  person,  and  neither  pos- 
sesses any  special  feature  or  incident  which  would,  accord- 
ing to  the  settled  doctrines  of  equity,  give  it  a  precedence 
over  the  others  wholly  irrespective  of  the  order  of  time, — 
under  these  circumstances  the  principle  applies,  and  priority 
of  claim  is  determined  by  priority  of  time.^  *    There  are, 

securities  and  paid  their  money,  had  notice  of  the  first  encumbrance  or  not." 
See  also  Cory  v.  Eyre,  1  De  Gex,  J.  &  S.  149,  167,  per  Turner,  L.  J.;  Newton  v. 
l^ewton,  L.  R.  6  Eq.  135,  140,  141,  per  Lord  Romilly,  M.  R. 

1  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491;  Beckett  v.  Cordley,  1 
Bro\vn  Ch.  353,  358;  Mackreth  v.  Symmons,  15  Ves.  354;  Loveridge  v.  Cooper, 
3  Russ.  30;  Peto  v.  Hammond,  30  Beav.  495;  Cory  v.  Eyre,  1  De  Gex,  J.  &  S. 
149;  Case  v.  James,  3  De  Gex,  F.  &  J.  256;  Newton  v.  Newton,  L.  R.  6  Eq, 
135;  Fitzsimmons  v.  Ogden,  7  Cranch,  2;  Berry  v.  Mutual  Ins.  Co.,  2  Johns. 
Ch.  603;  Muir  v.  Schenck,  3  Hill,  228,  38  Am.  Dec.  633;  Cherry  v.  Monro,  2 
Barb.  Ch.  618;  Van  Meter  v.  McFaddin,  8  B.  Mon.  435;  Rexfovd  v.  Rexford,  7 
Lans.  6;  Rowan  v.  State  Bank,  45  Vt.  160;  Rooney  v.  Soule,  45  Vt.  303; 
Tharpe  v.  Dunlap,  4  Heisk.  674.  One  or  two  simple  illustrations  of  this  prin- 
ciple may  be  proper.  If  a  creditor,  B,  holding  a  thing  in  action  due  from  A, 
should  assign  the  same,  for  a  valuable  consideration  paid  by  each,  to  successive 
assignees,  neither  of  whom  notified  the  debtor,  A,  nor  the  other  assignees,  aa 
long  as  such  thing  in  action  remained  unpaid,  the  first  assignee,  as  between 
himself  and  the  debtor,  A,  on  the  one  side,  and  the  subsequent  assignees  on  the 
other,  would  be  entitled  to  compel  payment  by  reason  of  his  priority,  since  th*' 
equities  of  all  the  assignees,  irrespective  of  time,  would  be  equal.  But  it, 
before  receiving  notice  of  any  prior  assignment,  the  debtor.  A,  should  be  noti- 
fied of  a  subsequent  assignment,  and  should  pay  the  claim  to  that  assignee, 
the  one  thus  paid  would  thereby  obtain  a  precedence,  since,  in  addition  to  his 
equitable  claim,  he  would  have  obtained  the  legal  title.  Again,  since  in  h 
very  large  number  of  the  states  the  interest  of  a  mortgagee  of  lands  is  puielj 
equitable,  unaccompanied  by  any  legal  estate,  if  in  those  states  an  owner  ol 
land.  A,  should  give  successive  mortgages  upon  it,  each  for  a  valuable  con 
sideration,  such  mortgages  would  be  entitled  to  a  priority  in  the  order  of  time, 
had  not  the  statutes  concerning  recording  interfered  with  the  operation  ot 
this  doctrine,  and  enabled  a  subsequent  mortgagee  to  obtain  a  preference  by 
means  of  the  record.  The  doctrine  would  still  prevail  if  all  the  mortgages 
ehould  be  unrecorded.  Other  illustrations  might  be  given,  but  these  will 
fiuflice.  It  is  plain  that  in  this  country  the  statutory  system  of  rncording  has 
greatly  interfered  with  the  application  of  the  principle  in  cases  where  it  would 
■operate,  in  England,  to  determine  the  rights  of  the  parties. 

(a)  The  text  is  quoted  in  Hurst  v.  Hurst  (Ky.),  76  S.  W.  325;  Campbell 
V.  Kidwell,  61  Ohio  Hi.  179,  55  N.  E.  609. 


693       WHEBE   EQUAL   EQUITY,    THE   LAW    MUST   PEEVAIL.       §  416 

however,  many  features  and  incidents  of  equitable  interests 
which  prevent  the  operation  of  this  rule,  and  which  give  a 
subsequent  equity  the  precedence  over  a  prior  one,  as  will 
be  fully  shown  in  the  next  chapter.  The  principle  em- 
bodied in  this  maxim  lies  at  the  foundation  of  the  important 
doctrines  concerning  priorities,  notice,  and  the  rights  of 
purchasers  in  good  faith  and  for  a  VEiluable  consideratioUy 
which  so  largely  affect  the  administration  of  equity  juris- 
prudence in  England,  though  to  a  less  extent  in  the  United 
States,  and  which  are  discussed  in  the  following  chapter." 


SECTION  vn. 

WHERE  THERE  IS  EQUAL  EQUITY,  THE  LAW  MUST  PREVAIL, 

ANALYSIS. 
i  416.  Its  application. 
§  417.  Its  meaning  and  eflFects. 

§  41 G.  Its  Application —  This  maxim  and  the  one  ex- 
amined in  the  last  preceding  section  must  be  taken  in  con- 
nection, in  order  to  constitute  the  enunciation  of  a  complete 
prLQciple.  The  first  applies  to  a  certain  condition  of  facts ; 
the  other  supplements  its  operation  by  applying  to  addi- 
tional facts  by  which  equitable  rights  and  duties  may  be 
affected.     The  two  are  in  fact  counterparts  of  each  other, 

(b)    The  text  is  quoted  in  Camp-  lien   B  that   of  a   judgment   against 

bell  V.  Sidwell,   61   Ohio  St.   179,  55  the  grantee,  lien  C  that  of  B's  bona 

N.  E.  609.     In  this  interesting  case  fide  mortgagee.     The  court  held  that 

it  was  urged  that  the  maxim  should  the  maxim  should  be  confined  to  cases 

be  applied  in  a  certain  class  of  cases  where    the    liens    are    equitable    and 

where,    though    the    equities   are   ad-  are  equal  in  all  respects  save  time; 

mittedly  unequal,  the  usual  rules  of  and,    the   property   being   insufHcient 

priority  cannot  be  applied  without  an  to  pay  the  mortgage  in  full,  ordered' 

apparent  absurdity;   viz.,  where  lien  sufficient  of  the  proceeds  paid  to  dis- 

A   is   superior   to   lien   B,    lien   B   is  charge    the    judgment,    and    the   rest 

superior  to  lien  C,  but  lien  C  is  su-  applied  upon  the  mortgage.     The  sec- 

perior  to  lien  A  —  a  situation  by  no  ond   lien   was   thus  given   a   priority 

means  uncommon.     In  the  particular  which   it   would   not   have   had    save 

case,    lien   A   was    a   grantor's    lien,  for  the  existence  of  the  third  lien. 


^  417  EQUITY   JUEISPETJDENCB.  694 

and  taken  together,  they  form  the  source  of  the  doctrines,  in 
their  entire  scope,  concerning  priorities,  notice,  and  pur- 
chasers for  a  valuable  consideration  and  without  notice. 
Any  full  examination  of  these  two  maxims,  and  explanation 
of  their  effects,  would,  of  necessity,  be  a  complete  discussion 
of  those  doctrines,  and  will,  therefore,  not  be  attempted  at 
present,  but  will  be  postponed  to  a  subsequent  chapter.^ 

§  417.  Its  Meaning  and  Effects. —  The  meaning  of  the 
maxim  is,  if  two  persons  have  equal  equitable  claims  upon 
or  interests  in  the  same  subject-matter,  or  in  other  words,  if 
each  is  equally  entitled  to  the  protection  and  aid  of  a 
court  of  equity  with  respect  of  his  equitable  interest,  and 
one  of  them,  in  addition  to  his  equity,  also  obtains  the  legal 
estate  in  the  subject-matter,  then  he  who  thus  has  the  legal 
estate  will  prevail.  This  precedence  of  the  legal  estate 
might  be  worked  out  by  the  court  of  equity  refusing  to  inter- 
fere at  all,  and  thereby  leaving  the  parties  to  conduct  their 
■controversy  in  a  court  of  law,  where  of  course  the  legal 
■estate  alone  would  be  recognized.^    One  of  the  most  frequent 

§  416,  1  See  the  next  chapter,  sections  on  "  priorities  "  and  "  notice." 
§  417,  1  Thorndike  v.  Hunt,  3  De  Gex  &  J.  563,  570,  571;  Caldwell  v.  Ball,  1 
Term  Rep.  214;  Fitzsimmons  v.  Ogden,  7  Cranch,  2,  18;  Newton  v.  McLean,  41 
Barb.  285.  Thorndike  v.  Hunt,  3  De  Gex  &  J.  563,  570,  571,  is  a  very  instructive 
■case,  illustrating  this  principle;  the  facts  were  as  follows:  A  certain  person, 
H.,  was  trustee  of  two  entirely  distinct  trusts, —  one  in  favor  of  Thorndike, 
the  other  in  favor  of  Browne.  In  a  suit  brought  by  the  cestui  que  tnist,  T., 
in  one  of  these  trusts,  the  trustee  was  ordered  to  transfer  moneys,  the  pro- 
ceeds of  certain  trust  property  in  his  hands,  into  court.  The  transfer  waa 
made  by  him,  the  money  was  paid  into  court  and  deposited  to  the  credit  of 
T.'s  suit,  and  was  treated  as  belonging  to  T.'s  estate.  By  operation  of  the 
statute,  the  legal  estate  in  such  money  thereby  became  vested  in  the  account- 
ant-general, an  officer  of  the  court,  for  the  purposes  of  the  suit.  It  subse- 
quently was  discovered  that  the  trustee,  H.,  had  provided  himself  witli  money, 
for  the  purpose  of  complying  with  the  order  of  the  court,  by  fraudulently  mis- 
appropriating certain  funds  which  he  held  under  the  other  trust  in  favor  of  B. 
On  discovery  of  this  fact,  B.  brought  a  second  suit  for  the  purpose  of  reaching 
euch  moneys;  and  the  only  question  was,  whether  B.  could  reach  the  money 
which  had  thus  been  paid  into  court.  The  court  held  that  ho  could  not,  be- 
cause, the  equities  of  T.  and  of  B.  being  otherwise  equal,  T.  had  obtained  the 
Ix-nefit  of  the  legal  title  on  his  side.  The  reasons  given  for  the  decision  were  as 
follows:  that  T.  had  no  notice  of  the  trustee's  want  of  riglit  and  title  to  the 
money  wliidi  he  paid  into  court;  that  the  transfer  was  for  a  valuable  consid- 
•eration,  becuutte  tliere  waa  a  debt  due  from   tiie  trustee  for  which  he  would 


695  EQUITY   AIDS    THE    VIGILANT.  §  418 

and  important  consequences  and  applications  of  tMs  prin- 
ciple is  the  doctrine,  that  when  a  purchaser  of  property  for 
a  valuable  consideration,  and  without  notice  of  a  prior 
equitable  right  to  or  interest  in  the  same  subject-matter, 
obtains  the  legal  estate  in  addition  to  his  equitable  claim, 
he  becomes,  in  general,  entitled  to  a  priority  both  in  equity 
and  at  law.^  • 


SECTION   VIIL 

EQUITY    AIDS    THE    VIGILANT,    NOT    THOSE    WHO    SLUMBER    ON 

THEIR    RIGHTS. 

ANALYSIS. 

i  418.  Its  meaning;  is  a  rule  controlling  the  administration  of  remedies. 
$  419.  Its  application  and  effects. 

§  418.  Its  Meaning ;  Is  a  Rule  Controlling  the  Administration 
of  Remedies. —  The  principle  embodied  in  this  maxim,  the 
original  form  of  which  is,  Vigilantihus  non  dormientibus 
cequitas  siibvenit,  operates  throughout  the  entire  remedial 
portion  of  equity  jurisprudence,  but  rather  as  furnishing  a 
most  important  rule  controlling  and  restraining  the  courts 
in  the  administration  of  all  kinds  of  reliefs,  than  as  being 
the  source  of  any  particular  and  distinctive  doctrines  of  the 
jurisprudence.    Indeed,  in  some  of  its  applications  it  may 

have  been  liable  by  execution  upon  his  own  property,  or  otherwise,  and  there- 
fore B.'s  equity  to  follow  the  money  was  no  higher  than  T.'s  right  to  retain 
it,  and  the  fact  that  the  legal  title  was  held  for  T.  by  the  accountant-general 
was  sufficient  to  create  a  preference  in  T.'s  favor. 

2 Basset  v.  Nosworthy,  Gas.  t.  Finch,  102,  2  Lead.  Cas.  Eq.  1,  and  notes; 
Le  Neve  v.  Le  Neve,  Amb.  436,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  109,  and  notes; 
Phillips  V.  Phillips,  4  De  Gex,  F.  &  J.  208;  Pilcher  v.  Rawlins,  L.  R.  7  'Ch. 
259;  Jerrard  v.  Saunders,  2  Ves.  454;  Wallwyn  v.  Lee,  9  Ves.  24;  Payne  v. 
Compton,  2  Younge  &  C.  457 ;  Wood  v.  Mann,  1  Sum.  507 ;  McNeil  v.  Magee, 
5  Mason,  2G9 ;  Vattier  v.  Hinde,  7  Pet.  252;  Boone  v.  Chiles,  10  Pet.  177; 
Rexford  v.  Rexford,  7  Lans.  6;   Rowan  v.  State  Bank,  45  Vt.  160. 

(a)  The  text  is  cited  in  Tate  v.  Se-  omy   Sav.   Bank   v.   Gordon,   90   Md. 

curity  Trust  Co.,  (N.  J.  Eq.),  52  Atl.  486,  45  Atl.  176,  48  L.  R.  A.  63  (bona 

313  (valuable  consideration  essential  fide  assignee  of  mortgage  protected). 
element  of  bona  fide  purchase)  ;  Econ- 


§  418  EQUITY   JURISPRUDENCE.  096^ 

properly  be  regarded  as  a  special  form  of  the  yet  more 
general  principle,  He  who  seeks  equity  must  do  equity.* 
The  principle  thus  used  as  a  practical  rule  controlling  and 
restricting  the  award  of  reliefs  is  designed  to  promote  dili- 
gence on  the  part  of  suitors,  to  discourage  laches  by  making 
it  a  bar  to  relief,  and  to  prevent  the  enforcement  of  stale 
demands  of  all  kinds,  wholly  independent  of  any  statutory 
periods  of  limitation.  It  is  invoked  for  this  purpose  in 
suits  for  injunction,  suits  to  obtain  remedy  against  fraud, 
and  in  all  classes  of  cases,  except  perhaps  those  brought 
to  enforce  a  trust  against  an  express  trustee.^  * 

1  Thus  in  applications  to  restrain  by  injunction  acts  authorized  by  statute,. 
on  the  ground  that  they  would  constitute  a  nuisance,  and  in  all  other  similar 
applications,  the  rule  is  well  settled  that  the  plaintiff  must  use  diligence  in 
seeking  his  remedy,  and  a  comparatively  short  delay  may  be  laches  sufficient 
to  defeat  his  remedial  right.  With  reference  to  this  example  of  the  maxim 
it  was  said  in  Great  Western  R'y  v.  Oxford,  etc.,  R'y,  3  De  Gex,  M.  &  G.  34  i> 
359,  per  Turner,  L.  J.:  "The  jurisdiction  to  interfere  is  purely  equitable,  and 
it  must  be  governed  by  equitable  principles.  One  of  the  first  of  those  princi- 
ples is,  that  parties  coming  into  equity  must  do  equity;  and  this  principle 
more  than  reaches  to  cases  of  this  description.  If  parties  cannot  come  into 
equity  without  submitting  to  do  equity,  a  fortiori  they  cannot  come  for  the 
summary  interference  of  the  court  when  their  conduct  before  coming  has 
been  such  as  to  prevent  equity  being  done."  And  see  Buxton  v.  James,  5  D© 
Gex  &  S.  80,  84;  Coles  v.  Sims,  Kay,  56,  70,  5  De  Gex,  M.  &  G.  1;  Gordon  v. 
Cheltenham  R'y,  5  Beav.  229,  237;  Fuller  v.  Melrose,  1  Allen,  166;  Tash  v. 
Adams,  10  Cush.  252. 

2  Great  Western  R'y  v.  Oxford,  etc.,  R'y,  3  De  Gex,  M.  &  G.  341;  Attorney- 
General  v.  Sheffield  Gas  Co.,  3  De  Gex,  M.  &  G.  304;  Derbishire  v.  Home,  » 
De  Gex,  M.  &  G.  80;  Wright  v.  Vanderplank,  8  De  Gex,  M.  &  G.  133;  Coles 
v.  Sims,  5  De  Gex,  M.  &  G.  1 ;  Kay,  56,  70 ;  Graham  v.  Birkenhead,  etc.,  R'y, 
2  Macn.  &  G.  146 ;  Buxton  v.  James,  5  De  Gex  &  S.  80 ;  Cooper  v.  Hubbuck.  30 
Beav.  160;  Gordon  v.  Cheltenham  R'y,  5  Beav.  229,  237;  Attorney-General  v. 
Eastlake,  11  Hare,  205,  228;  Rockdale  Canal  Co.  v.  King,  2  Sim.,  N.  S.,  78; 
Wood  v.  Sutcliflfe,  2  Sim.,  N.  S.,  163;  Senior  v.  Pawson,  L.  R.  3  Eq.  330; 
Attorney-General  v.  Limatic  Asylum,  L.  R.  4  Ch.  146;  Bankart  v.  Houghton, 
27  Beav.  425,  428;  Odlin  v.  Gove,  41  N.  H.  465,  77  Am.  Dec.  773;  Bassett  v. 
Salisbury  Mfg.  Co..  47  N.  H.  426,  439;  Peabody  v.  Flint,  6  Allen,  52;  Fuller 
V.  Melrose,  1   Allen,   166;  Tash  v.  Adams,  10  Cush.  252;   Briggs  v.  Smith,  5 

(a)  The  text  is  cited  in  Jackson  v.  39  N.  Y.  Suppl.  402,  3  App.  Div.  91; 

Lynch,   129  III.  72,  21  N.  E.  580,  22  Hensel  v.  Kegans,    (Tex.  Civ.  App.), 

N.    E.    246;    Citizens    Nat.    Bank   of  28  S.  W.  705.     The  subject  of  laches 

Utica  V,  Judy,  146  Ind.  322,  43  N.  E.  is   treated   more   at   length    in    Pom. 

2.'>9;    Eames  v.   Manlcy,    (Mich.),   80  Equit.  Remedies,  Introductory  Chap- 

N.  W.  15;  McKcchnie  v.  McKcchnie,  ter. 


697  EQUITY    AIDS    THE    VIGILANT.  §  419 

§  419.  Its  Application  and  Effects. — The  scope  and  effect  of 
the  general  principle  as  a  rule  for  the  administration  of  re- 
liefs irrespective  of  any  statutory  limitations  was  stated 
by  an  eminent  English  chancellor  in  the  following  language : 
'  *  A  court  of  equity,  which,  is  never  active  in  relief  against, 
conscience  or  public  convenience,  has  always  refused  its  aid 
to  stale  demands,  where  the  party  has  slept  upon  his  rights, 
and  acquiesced  for  a  great  length  of  time.  Nothing  can 
call  forth  this  court  into  activity  but  conscience,  good  faith, 
and  reasonable  diligence."  ^  *  The  principle  has  in  fact  two 
aspects,  one  of  them  wholly  independent  of  any  statutory 
limitation,  and  the  other  with  reference  to  such  statute.  In 
the  earlier  forms  of  the  statute  of  limitations,  the  pro- 
visions were,  in  express  terms,  confined  to  actions  at  law; 
and  yet  courts  of  equity,  proceeding  upon  the  analogy  of 
these  enactments  in  most  suits  to  enforce  equitable  titles 
to  real  estate  and  equitable  personal  claims,  applied  the 
statutory  periods.^  ^    In  certain  kinds  of  suits,  however,  es- 

R.  I.  213;  Grey  v.  Ohio  &  Penn.  R.  R.,  1  Grant  Cas.  412;  Little  v.  Price, 
1  Md.  Ch.  182;  Binney's  Case,  2  Bland,  99;  Burden  v.  Stein,  27  Ala.  104,  62 
Am.  Dec.  758 ;  Pillow  v.  Thompson,  20  Tex.  206 ;  Borland  v.  Thornton,  12  Cal. 
440;  Phelps  v.  Peabody,  7  Cal,  50. 

1  Per  Lord  Camden  in  Smith  v.  Clay,  3  Brown  Ch.  638 ;  and  see  also  Lacon 
V.  Briggs,  3  Atk.  105  (suit  by  an  executor  to  recover  a  debt  due  his  testator, 
after  seventeen  years'  delay,  dismissed)  ;  Ellison  v.  Moffatt,  1  Johns.  Ch.  46 
(suit  for  an  account  of  transactions  ended  twenty-six  years  before  the  bill 
was  filed  dismissed);  Phillips  v.  Prevost,  4  Johns.  Ch.  205  (bill  by  executor 
of  a  judgment  creditor  to  enforce  a  judgment  recovered  more  than  thirty-six 
years  before,  against  the  representatives  of  the  debtor  thirty  years  after  his 
death,  dismissed)  ;  Germantown,  etc.,  Co.  v.  Filter,  60  Pa.  St.  124,  133,  100 
Am.  Dec.  546;  Preston  v.  Preston,  95  U.  S.  200;  Neely's  Appeal,  85  Pa.  St. 
387;  Johnson  v.  Diversey,  82  111.  446;  Colwell  v.  Miles,  2  Del.  Ch.  110;  Pas- 
chall  v.  Hinderer,  28  Ohio  St.  568 ;  Barnes  v.  Taylor,  27  N.  J.  Eq.  259 ;  In  re 
Butler,  2  Hughes,  247;  King  v.  Wilder,  75  111.  275;  Hathaway  v.  Noble,  55 
N.  H.  508. 

2  Hull  v.  Russell,  3  Saw.  506;  Blanchard  v.  Williamson,  70  111.  647;  and 
Bee  cases  cited  in  the  two  preceding  notes. 

(a)  The  text  is  cited  in  Haney  v.  (b)  The  text  is  quoted  in  Moore  v. 

Legg,  129  Ala.  619,  30  South.  34,  87       Moore,  (Ga.),  30  S.  E.  535. 
Am.  St.  Rep.  81;   Hensel  v.  Kegans, 
(Tex.  Civ.  App.),  28  S.  W.  705. 


§  420  EQUITY   JURISPRUDENCE.  698 

pecially  those  brought  against  trustees  to  enforce  express 
trusts,  the  analogy  of  the  statute  was  not  followed.^ "  The 
modern  forms  of  these  statutes,  in  the  American  states, 
generally  declare,  in  express  terms,  that  the  periods  of 
limitation  shall  apply  to  all  equitable  suits  as  well  as  to 
legal  actions.  This  legislation  has  not,  however,  abro- 
gated the  principle  under  consideration;  all  cases  not  fall- 
ing within  the  scope  of  the  statutory  limitations  would 
still  be  controlled  by  it 


SECTION  IX. 

EQUITY  IMPUTES  AN  INTENTION  TO  FULFILL  AN  OBLIGATION. 


ANALYSIS. 


§  420.  Its  meaning  and  application. 
-15  421,  422.  Is  the  source  of  certain  equitable  doctrines. 
§  421.  Performance  of  covenants. 
§  422.  Trust  resulting  from  acts  of  a  trustee. 

§  420.  Its  Meaning  and  Application. —  This  principle  is  the 
statement  of  a  general  presumption  upon  which  a  court  of 
equity  acts.  It  means  that  wherever  a  duty  rests  upon  an 
individual,  in  the  absence  of  all  evidence  to  the  contrary,  it 
shall  be  presumed  that  he  intended  to  do  right,  rather  than 
wrong;  to  act  conscientiously,  rather  than  with  bad  faith; 
to  perform  his  duty,  rather  than  to  violate  it.  The  principle 
is  applied  in  those  cases  where  a  court  of  equity  is  called 
upon  to  determine  whether  an  equitable  estate  or  interest  in 
certain  subject-matter  belongs  to  A,  in  pursuance  of  an  obli- 
gation which  rested  upon  B,  although  B,  in  acquiring  the 
subject-matter,  has  not  expressed  or  indicated  in  any  man- 
ner an  intention  on  liis  part  of  performing  such  obligation; 
that  is,  he  did  not  acquire  the  subject-matter  for  the  avowed 
purpose  of  fulfilling  his  duty.    Notwithstanding  the  absence 

aColwell  V.  Miles,  2  Del.  Ch.  110. 
(c)  Tlic  t4xt  ie  cilcd  to  this  effect  in  Uutcheson  v.  Grubbs,  80  Va.  25L 


■699  IMPUTES    INTENTION    TO    FULFILL    OBLIGATION.         §  421 

of  such  avowed  intention,  a  court  of  equity  may  proceed 
upon  the  presumption  that  B  did  intend  to  perform  his  duty ; 
may  hold  that  the  subject-matter  was  acquired  with  that 
design,  and  that  in  consequence  of  such  purpose  an  equitable 
estate  in  it  belongs  to  A. 

§  421.  Is  the  Source  of  Certain  Equitable  Doctrines:  Per- 
formance of  Covenants. —  One  important  application  of  the 
principle  is  in  connection  with  the  performance  of  express 
covenants.  The  general  rule  has  therefore  been  settled, 
that  where  a  person  covenants  to  do  an  act,  and  he  after- 
wards does  something  which  is  capable  of  being  considered 
either  a  total  or  partial  performance  of  that  act,  he  will  be 
presumed  to  have  done  it  with  the  intention  of  performing 
the  covenant,  although,  of  course,  no  such  intention  was  ex- 
pressed. In  the  leading  case  which  illustrates  this  rule  a 
person  in  marriage  articles  covenanted  to  purchase  lands 
of  the  annual  value  of  two  hundred  pounds,  and  to  settle 
them  upon  his  wife  for  her  life,  and  then  upon  his  first- 
born son  in  tail,  etc.  He  purchased  lands  of  greater  value, 
but  made  no  settlement  of  them,  and  on  his  death  they  de- 
scended to  his  eldest  son  as  heir  at  law.  This  son  then 
brought  suit  against  his  father's  representatives,  to  compel 
other  lands  to  the  value  of  two  hundred  pounds  per  an- 
num to  be  purchased  with  the  personal  property  of  the 
estate,  and  to  be  settled  upon  him  in  pursuance  of  the 
covenant.  It  was  held,  however,  that  the  lands  which  were 
purchased  by  the  father,  and  suffered  to  descend  to  the  son, 
should  be  regarded  as  a  satisfaction  of  the  covenant ;  that  a 
court  of  equity  would  act  upon  the  presumption  that  the  pur- 
chase was  made  by  the  father  with  the  intent  of  perform- 
ing the  duty  laid  upon  him  by  his  covenant.^  * 

IWilcocks  V.  Wilcocks,  2  Vern.  558,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  833. 
This  rule  is  applied  in  the  same  manner  where  a  person  having  no  real  estate 
covenants  to  convey  and  settle,  and  he  afterwards  purchases,  but  does  not 
convey  nor  settle,  the  purchase  will  be  presumed  made  with  the  intent  to 
fulfill,  and  the  lands  thus  purchased  will  be  treated  as  subject  to  the  cove- 

(a)  Sec  §§  578  et  seq. 


§  422  EQUITY    JURISPRUDENCE.  TOO 

§  422.  Trust  Resulting  from  Acts  of  a  Trustee. — Another 
and  far  more  important  application  of  the  principle  that 
equity  imputes  an  intention  to  fulfill  an  obligation  is  seen  in 
the  following  well-settled  rule  concerning  the  creation  of  a 
resulting  trust,  under  certain  circumstances,  by  the  acts  of 
the  trustee  or  other  person  standing  in  fiduciary  relations : 
Whenever  a  trustee  or  other  person  in  a  fiduciary  position, 
acting  apparently  within  the  scope  of  his  powers, —  that  is, 
having  authority,  by  virtue  of  his  trust  or  other  fiduciary 
relation,  to  do  what  he  does  do, —  purchases  land  or  personal 
property  with  trust  funds,  or  funds  in  his  hands  impressed 
with  the  fiduciary  character,  and  takes  the  title  to  such  prop- 
erty in  his  own  name,  without  any  declaration  of  a  trust, 
a  trust  with  respect  to  such  property  at  once  results  in  favor 
of  the  original  cestui  que  trust  or  other  beneficiary;  the 
purchaser  becomes  with  respect  to  such  property  a  trustee. 
Equity  regards  such  a  purchase  as  made  in  trust  for  the 
person  beneficially  interested,  independently  of  any  impu- 
tation of  fraud  or  fraudulent  design,  because  it  assumes  that 
the  purchaser  intended  to  act,  and  was  acting,  in  pursuance 
of  his  fiduciary  duty,  and  not  in  violation  thereof.  This 
doctrine  is  one  of  wide  operation,  and  is  used  by  courts  of 
equity  with  great  efficiency  in  maintaining  and  protecting 
the  beneficial  rights  of  property.  It  has  been  applied  to 
trustees  proper,  to  executors,  and  administrators,  directors 
and  managers  of  corporations,  guardians  of  infant  wards, 
guardians  or  committees  of  lunatics,  agents  using  moneys 
of  their  principals,  partners  using  partnership  funds, 
husbands  purchasing  property  with  funds  belonging  to  the 
separate  estate  of  their  wives,  and  to  all  persons  who  stand 

nant,  and  dealt  with  so  as  to  carry  it  into  efTect:  Deacon  v.  Smith,  3  Atk. 
323;  Wcllcsley  v.  Wellesley,  4  Mylne  &  C.  581.  Where  the  lands  thus  pur- 
chased are  of  less  value  tlian  those  covenanted  to  be  purchased  or  to  be  con- 
veyed and  settled,  they  will  be  considered  as  purchased  in  part  performance 
of  the  covenant:  Jvochmere  v.  Karl  of  Carlisle,  3  P.  Wms.  211;  Lechmcre  v. 
Lech  mere,  Cas.  t.  Talb.  80;  Snowden  v.  fciuowden,  1  Brown  Ch.  582,  3  P.  Wms. 
228,  note. 


701  WILL    NOT    SUFFER    WRONG    WITHOUT    REMEDY.         §  423 

in  fiduciary  relations  towards  others.* "  In  order  that  this 
rule  may  apply,  however,  it  must  be  made  to  appear  with 
reasonable  certainty  that  trust  or  other  fiduciary  funds 
were  actually  used  in  making  the  purchase.  A  court  of 
equity,  in  order  to  raise  a  resulting  trust,  will  not  assume, 
from  the  mere  fact  that  the  purchaser  had  or  might  have 
had  trust  moneys  in  his  hands,  that  he  used  them  in  paying 
for  the  property  purchased,  in  the  absence  of  evidence 
-clearly  showing  such  use  by  him.^ 


SECTION  X. 

EQUITY  WILL  NOT  SUFFER  A  WRONG  WITHOUT  A  REMEDY. 

ANALYSIS. 

=5  423.     Its   general   meaning   and  effects. 
I  424.     Limitations  upon  it. 

§  423.  Its  General  Meaning —  This  principle,  which  is  the 
somewhat  restricted  application  to  the  equity  jurisprudence 
of  the  more  comprehensive  legal  maxim,  Uhi  jus  ibi  reme- 
dium, —  wherever  a  legal  right  has  been  infringed,  a  remedy 
will  be  given, —  is  the  source  of  the  entire  equitable  jurisdic- 

1  As  applied  to  trustees:  Deg  v.  Deg,  2  P,  Wms.  414;  Lane  v.  Dighton, 
Amb.  409 ;  Perry  v.  Phelips,  4  Ves.  107,  17  Ves.  173 ;  Schlarfer  v.  Corson,  32 
Barb.  510;  Ferris  v.  Van  Vechten,  73  N.  Y.  113;  McLaren  v.  Bre^ver,  51  Me. 
402;  Hancock  v.  Titus,  33  Miss.  224.  To  executors  and  administrators: 
White  V.  Drew,  42  Me.  561;  Stow  v.  Kimball,  28  111.  93;  Barker  v.  Barker, 
14  Wis.  131.  To  directors  or  managers  of  corporations:  Church  v.  Sterling, 
16  Conn.  388.  To  guardians:  Johnson  v.  Dougherty,  4  N.  J.  Eq.  406;  Ban- 
croft V.  Cousen,  13  Allen,  50.  To  committees  of  luyiatics:  Reid  v.  Fitch,  11 
Barb.  399.  To  agents:  Robb's  Appeal,  41  Pa.  St.  45;  Bridenbacker  v.  Lowell, 
32  Barb.  10.  To  partners:  Smith  v.  Burnham,  3  Sum.  435;  Oliver  v.  Piatt,  3 
How.  401;  Homer  v.  Homer,  107  Mass.  85;  Settembre  v.  Putnam,  30  Cal. 
490;  Jenkins  v.  Frink,  30  Cal.  586,  89  Am.  Dec.  134. 

2  Ferris  v.  Van  Vechten,  73  N.  Y.  113.  This  is  a  very  instructive  decision, 
admitting  the  doctrine  as  well  settled,  but  showing  the  necessity  of  proof 
«learly  showing  the  appropriation  of  the  fiduciary  funds. 

(a)  See   §§  587,   1049. 


§  424  EQUITY   JURISPEUDENCE.  702' 

tion,  exclusive,  concurrent,  and  auxiliary.  A  full  treatment 
of  it,  including  an  explanation  of  its  scope  and  meaning,  witb 
its  various  applications  and  illustrations,  would  simply  be  a 
restatement  of  all  the  doctrines  and  rules  concerning  juris- 
diction which  have  already  been  discussed  in  the  first  part 
of  this  work.  No  such  unnecessary  repetition  will  be  at- 
tempted. It  is  enough  that  the  principle  finds  its  develop- 
ment in  the  whole  body  of  doctrines  and  rules  which  define 
and  regulate  the  equitable  jurisdiction  as  distinguished  frora 
the  jurisdiction  at  law. 

§  424.  Its  Limitations. —  There  are,  however,  certain  im- 
portant limitations  upon  the  generality  of  the  maxim  which 
may  properly  be  stated  here,  although  they  have  all  been 
referred  to  in  the  Introductory  Chapter,  where  the  nature 
of  equity  is  described,  or  in  the  chapters  of  Part  First, 
where  the  doctrines  concerning  the  exclusive  and  concurrent 
jurisdiction  are  explained.  The  first  of  these  limitations  is, 
that  equity  cannot  interfere  to  give  any  remedy,  unless  the 
right  in  question,  the  invasion  of  which  constitutes  the 
wrong  complained  of,  is  one  which  comes  within  the  scope 
of  juridical  action,  of  juridical  events,  rights,  and  duties. 
The  right  must  belong  to  the  purview  of  the  municipal  law, 
—  must  be  one  which  the  municipal  law,  through  some  of 
its  departments,  recognizes,  maintains,  and  protects. 
Equity  does  not  attempt,  any  more  than  the  law,  to  deal  with 
obligations  and  corresponding  rights  which  are  purely 
moral,  which  properly  and  exclusively  belong  to  the  tribunal 
of  conscience.^  *     The  second  limitation  is,  that  equity  does 

1  It  is  upon  this  ground  that  where  a  right,  undoubtedly  belonging  to  the 
domain  of  the  municipal  law,  is  strictly  legal,  equity  will  not  interfere  merely 
because,  under  the  particular  circumstances  of  any  case,  every  legal  means 
and  instrument  of  obtaining  relief  has  been  tried  and  exhausted  without 
avail.  It  ia  plain  that  if  equity  should  interfere  in  any  such  case,  it  could 
only  be  on  the  ground  that  the  party  had  a  moral  right;  that  he  was  morally 
entitled  to  redress;  because  on  the  assumption,  the  right,  being  strictly  legal, 
cornea  within  no  recognized  head  of  the  equitable  jurisdiction,  and  the  only 

(a)  This  piiragraph  of  the  text  is  cited  in  Ilarrigan  v,  Gilchrist  (Wis.).. 
09  N.  W.  a01>,  933. 


703  WILL    NOT    SUFFER    WRONG    WITHOUT    REMEDY.  §  424 

not  interfere  to  remedy  any  wrong  where  the  right  and  the 
remedy,  assuming  that  the  right  falls  within  the  purview  of 
the  municipal  law,  both  completely  belong  to  the  domain  of 
the  law.  In  order  that  the  principle  may  apply,  one  of  three 
facts  must  exist,  viz.,  either, —  1.  The  right  itself  must  be 
one  not  recognized  as  existing  by  the  law;  or  2.  The  right 
existing  at  the  law,  the  remedy  must  be  one  which  the  law 
cannot  or  does  not  administer  at  all ;  or  3.  The  right  existing 
at  the  law,  and  the  remedy  being  one  which  the  law  gives, 
the  remedy  as  administered  by  the  law  must  be  inadequate, 
incomplete,  or  uncertain.  Of  these  three  alternatives,  the 
first  and  second  denote  the  exclusive  jurisdiction  of  equity ; 
the  tliird,  the  concurrent  jurisdiction.  The  third  limitation 
upon  the  principle  is,  that  it  does  not  apply  where  a  party, 
whose  case  would  otherwise  come  within  one  of  the  three 
alternatives  above  mentioned,  has  destroyed  or  lost  or 
waived  his  right  to  an  equitable  remedy  by  his  own  act  or 
laches.  With  these  limitations  upon  its  operation,  the  prin- 
ciple has  been  developed  into  the  vast  range  of  the  equitable 
jurisdiction,  which,  considered  in  its  entirety,  gives, —  1. 

possible  reason  for  interference  by  a  court  of  equity  would  be  that,  the  legal 
remedies  proving  absolutely  fruitless,  and  the  party  having  no  other  means 
of  redress,  he  has  a  claim  upon  a  court  of  equity  based  upon  the  intrinsic 
righteousness  of  his  demand.  To  such  a  purely  moral  claim  equity  does  not 
and  cannot  respond.  See  Finnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep. 
292;  Rees  v.  City  of  Watertown,  19  Wall.  121;  Heine  v.  Levee  Com'rs,  19 
Wall.  G58.  In  Rees  v.  Watertown,  19  Wall.  121,  a  holder  of  bonds  issued 
by  the  city  alleged  in  his  bill  that  he  had  obtained  judgment  thereon  against 
the  city,  and  had  also  obtained  a  writ  of  mandamus  to  compel  the  city  officers 
to  raise  and  apply  funds  to  satisfy  the  judgment,  but  had  wholly  failed  of 
obtaining  any  redress.  He  prayed  that  the  taxable  property  of  the  citizens, 
which  he  claimed  was  a  fund  for  the  payment  of  municipal  debts,  might  bo 
subjected  to  the  payment  of  his  judgment,  and  that  the  marshal  might  be 
empowered  to  seize  and  sell  so  much  of  such  property  as  should  be  necessary 
for  that  purpose.  The  court  refused  relief  on  the  ground  that  the  demand 
was  wholly  a  legal  one,  and  that  the  proper  remedy  was  by  matidam,us,  and 
the  mere  fact  that  the  mandamus  had  failed  under  the  particular  circum- 
stances of  this  case  did  not  give  a  court  of  equity  any  jurisdiction.  The 
court  said  a  court  of  equity  "  cannot  assume  control  over  that  large  class  of 
obligations  called  imperfect  obligations,  resting  upon  conscience  and  moral 
duty  only,  unconnected  with  legal  obligations."  The  decisions  in  the  other 
cases  above  cited  are  to  the  same  effect. 


•§  425  EQUITY   JURISPRUDENCE.  704 

Legal  remedies  for  the  violation  of  legal  rights  in  a  more 
certain,  complete,  and  adequate  manner  than  the  law  can 
give ;  2.  Equitable  remedies  for  the  violation  of  legal  rights, 
which  the  law  has  no  power  to  give  with  its  means  of  pro- 
cedure f  and  3.  Eemedies,  either  equitable  or  legal  in  their 
nature  or  form,  for  the  violation  of  rights  of  which  the  law 
takes  no  cognizance, —  rights  which  the  law  does  not  recog- 
nize as  existing,  and  which  it  either  cannot  or  does  not  pro- 
i;ect  and  maintain. 


SECTION  XI. 

EQUITY  FOLLOWS  THE  LAW. 

ANALYSIS. 

<  {  425,  426.  Twofold  meaning  of  the  principle. 

S  425.  First,  in  obeying  the  law:  Heard  v.  Stamford,  per  Lord  Chan- 
cellor Talbot. 

I  426.  Second,  in  applying  certain  legal  rules  to  equitable  estates:  Cow- 
per  V.  Cowper,  per  Sir  J.  Jekyll,  M.  R. 

i  427.  Operates  within  very  narrow  limits. 

§  425.  Twofold  Meaning  —  First.  In  Obeying  the  Law. — 
This  maxim  in  its  Latin  form,  jEquitas  sequitur  legem, 
was  frequently  quoted  by  the  earlier  chancellors  before 
the  extent  of  the  equitable  jurisdiction  had  been  fully 
determined,  and  an  importance,  even  a  supreme  and  con- 
trolling efficacy,  has  been  attributed  to  it  by  some  writers 
which  it  does  not  and  never  did  possess.  So  far  as  it  can 
truly  be  called  a  general  principle,  guiding  and  regulat- 
ing the  action  of  equity  courts,  its  meaning  and  effect  are 
now  settled  within  well-defined  and  narrow  limits.  As  a 
practical  rule,  and  not  a  mere  verbal  theory,  it  is  wholly 
restrictive  in  its  operation,  and  its  only  object  is  to  keep 
the  jurisdiction  of  equity  from  overstepping  the  boundaries 

(b)  It  has  been  laid  down,  as  a  class  of  cases;  see  Gavin  v.  Curtin, 
principle  of  jurisdiction,  that  equity  171  111.  640,  49  N.  E.  523,  40  L.  R.  A. 
will    always    give    a    rciiicdy    in    this       776. 


705  EQUITY    FOLLOWS    THE    LAW.  §  426 

which  have  been  established  by  the  prior  course  of  adjudi- 
cation. "With  this  respect  the  maxim  has  a  double  import 
and  operation :  First.  Equity  follows  the  law,  in  the  sense 
of  obeying  it,  conforming  to  its  general  rules  and  policy, 
whether  contained  in  the  common  or  in  the  statute  law. 
This  meaning  of  the  principle  was  very  clearly  stated  by 
Lord  Chancellor  Talbot  in  the  following  passage :  *^  There 
^re  instances,  indeed,  in  which  a  court  of  equity  gives  a 
remedy,  where  the  law  gives  none;  but  where  a  particular 
remedy  is  given  by  the  law,  and  that  remedy  bounded  and 
-circumscribed  by  particular  rules,  it  would  be  very  improper 
for  this  court  to  take  it  up  where  the  law  leaves  it,  and  to 
■extend  it  further  than  the  law  allows."**  It  should  be 
observed,  however,  that  equity  had  not,  in  developing  its 
jurisdiction,  invaded  the  particular  doctrine  of  the  common 
law  which  was  involved  in  this  case;  but  it  had  certainly 
disregarded  other  rules  as  positive  and  well  settled,  in  its 
previous  course  of  decision. 

§  426.  Secondly.  In  Applying  Legal  Rules  to  Equitable  Es- 
tates.—  Equity  follows  the  law  in  the  sense  of  applying 
to  equitable  estates  and  interests  some  of  the  same  rules 

1  Heard  v.  Stamford,  Cas.  t.  Talb.  173,  In  this  case  the  chancellor  was 
asked  to  disregard  a  well-settled  doctrine  of  the  common  law.  By  the  then 
■existing  law,  if  a  man  married  he  at  once  became  personally  liable  for  all 
his  wife's  antenuptial  debts;  but  this  liability  ceased  upon  the  wife's  death. 
If  the  creditor  had  not  recovered  judgment  at  the  time  the  wife  died  he  was 
remediless,  no  matter  how  large  a  fortune  the  wife  may  have  brought  to 
and  left  with  her  husband.  This  rule  was  grossly  unjust  in  both  of  ita 
branches.  Defendant's  wife  was  indebted  at  the  time  of  the  marriage,  and 
•brought  her  husband  a  large  fortune,  but  died  soon  after.  One  of  her  cred- 
itors brought  this  suit  against  the  husband,  urging  that  he  shoiild  be  held 
liable  in  equity,  under  the  circumstances.  The  chancellor  held  that  he  was 
not  liable,  and  refused  to  decree  against  a  settled  rule  of  the  law. 

(a)  See  Henderson  v.  Hall,  134  of  equity  has  no  jurisdiction  to  en- 
Ala.  455,  32  South,  840;  Davis  v.  force  such  contract,  or  in  the  ab- 
Williams,  130  Ala.  530,  30  South.  sence  of  fraud,  accident,  or  mistake 
488,  89  Am.  St,  Rep.  55,  54  L.  R.  A.  to  so  modify  it  as  to  make  it  legal, 
749;  Gamewell  Fire  Alarm  Tel.  Co,  v.  and  then  enforce  it;  Hedges  v,  Dixon 
City  of  Laporte  (CCA.),  102  Fed.  County,  150  U.  S.  182,  14  Sup.  Ct. 
417.  When  a  contract  is  void  at  law  71. 
for  want  of  power  to  make  it,  a  court 

Vol.  1  —  45 


§  426  EQUITY   JUEISPEUDENCE.  706 

by  which  at  common  law  legal  estates  and  interests  of  a 
similar  kind  are  governed.  Equity,  having  by  the  exer- 
cise of  its  creative  power  called  into  existence  the  system 
of  equitable  estates,  determined  that  these  estates  should 
partake,  to  a  certain  extent,  of  the  quality  of  the  corre- 
sponding legal  estates.  Thus  a  use  in  fee  was  held  to 
descend  according  to  the  same  rules  as  a  legal  estate  in 
fee,  and  the  husband  was  entitled  to  curtesy  in  such  a  use. 
It  should  be  carefully  observed,  however,  that  courts  of 
equity  carried  out  the  principle  in  this  its  second  sense 
only  to  a  partial  and  quite  limited  extent.  A  careful  ex- 
amination will  show,  I  think,  that  the  only  important  rules 
of  law  adopted  by  the  early  chancellors  to  regulate  equi- 
table estates  were  those  concerning  descent  and  inheri- 
tance} The  feudal  incidents  of  legal  estates  were  held  not 
to  apply  to  uses ;  equitable  estates  in  fee  could  be  conveyed 
without  livery  of  seisin,  and  could  be  devised  by  will,  and 
were  not  subject  to  dower.  It  is  an  evident  error  to  say  that 
equitable  estates  were  regulated  by  all  the  rules  of  the 
law  applicable  to  the  corresponding  legal  estates.  This 
second  sense  in  which  the  principle  is  understood  was  admir- 
ably stated  in  a  celebrated  opinion  of  Sir  Joseph  Jekyll,  of 
which  the  following  is  the  important  passage:  "  The  law 
is  clear,  and  courts  of  equity  ought  to  follow  it  in  their 
judgments  concerning  titles  to  equitable  estates;  other- 
wise great  uncertainty  and  confusion  would  ensue.  And 
though  proceedings  in  equity  are  said  to  be  secundum 
discretionem  boni  viri,  yet  when  it  is  asked,  Vir  bonus  est 
quis?  the  answer  is,  Qui  consulta  patrum,  qui  leges  juraque 
servat.  And  it  is  said  in  Rooke's  Case^  that  discretion  is 
a  science  not  to  act  arbitrarily  according  to  men's  wills  and 

1  The  early  chancellors,  in  dealing  with  uses  and  other  equitable  estates, 
plainly  shrank  from  interfering  with  the  legal  rules  of  descent  and  inher- 
itance, which  were  so  dear  to  the  landed  proprietors.  Yet  they  held  that 
equitable  estates  in  fee  were  not  subject  to  dower,  although  they  were  to 
curtesy;  perhaps  this  distinction  was  not  displeasing  to  the  body  of  land- 
owners. 

2  Rooke't  Case,  5  Coke,  00  b. 


707  EQUITY   FOLLOWS    THE    LAW.  §  427 

private  affections,  so  the  discretion  which  is  executed  here  is 
to  be  governed  by  the  rules  of  law  and  equity,  which  are  not 
to  oppose,  bat  each  in  its  turn  to  be  subservient  to,  the 
other.  This  discretion,  in  some  cases,  follows  the  law  implic- 
itly; in  others,  assists  it  and  advances  the  remedy;  in  others 
again,  it  relieves  against  the  abuse,  or  allays  the  rigor  of  it ; 
but  in  no  case  does  it  contradict  or  overturn  the  grounds  or 
principles  thereof,  as  has  been  sometimes  ignorantly  im- 
puted to  this  court.  That  is  a  discretionary  power,  which 
neither  this  nor  any  other  court,  not  even  the  highest,, 
acting  in  a  judicial  capacity,  is  by  the  constitution  in- 
trusted with. ' '  ^  Some  of  the  sentences  of  this  often  quoted 
passage  must,  I  thinl?:,  be  accepted  only  with  considerable 
modification.  Taken  literally,  they  certainly  contradict  a 
large  portion  of  the  established  equitable  jurisdiction,  and 
of  the  settled  doctrines  of  the  equity  jurisprudence.  The 
same  twofold  import  of  the  principle  has  also  been  ex- 
pressed in  the  following  formulas :  1.  Equity  is  governed 
by  the  rules  of  the  law  as  to  legal  estates,  interests,  and 
rights.  2.  Equity  is  regulated  by  the  analogy  of  such  legal 
interests  and  rights,  and  the  rules  of  the  law  affecting  the 
same,  in  regard  to  equitable  estates,  interests,  and  rights^ 
where  any  such  analogy  clearly  subsists} 

§  427.  Operates  within  Very  Narrow  Limits. —  The  maxim 
is,  in  truth,  operative  only  within  a  very  narrow  range; 
to  raise  it  to  the  position  of  a  general  principle  would  be 
a  palpable  error.  Throughout  the  great  mass  of  its  juris- 
prudence, equity,  instead  of  following  the  law,  either  ignores 
or  openly  disregards  and  opposes  the  law.  As  was  shown 
in  that  portion  of  the  Introductory  Chapter  which  deals 
with  the  nature  of  equity,  one  large  division  of  the  equity 
jurisprudence  lies  completely  outside  of  the  law;  it  is  addi- 

3  Cowper  V.  Cowper,  2  P.  Wms.  720,  762.  In  this  case  the  court  reluctantly 
adhered  to  the  legal  canon  of  descent  which  prefers  the  whole  to  the  half 
blood,  and  held  that  an  equitable  estate  in  fee  descended  to  a  cousin  ol 
the  whole  blood,  instead  of  to  a  brother  of  the  half-blood  of  the  deceased 
owner. 

^Snell's  Equity,  14. 


§  428  EQUITY   JUBISPRUDENCE.  708 

tional  to  the  law;  and  while  it  leaves  the  law  concerning 
the  same  subject-matter  in  full  force  and  efficacy,  its  doc- 
trines and  rules  are  constructed  without  any  reference  to 
the  corresponding  doctrines  and  rules  of  the  law.  Another 
division  of  equity  jurisprudence  is  directly  opposed  to  the 
law  which  applies  to  the  same  subject-matter;  its  doctrines 
and  rules  are  so  contrary  to  those  of  the  law,  that  when  they 
are  put  into  operation  the  analogous  legal  doctrines  and 
rules  are  displaced  and  nullified.  As  these  conclusions 
cannot  be  questioned,  it  is  plain  that  the  maxim,  Equity 
follows  the  law,  is  very  partial  and  limited  in  its  application, 
and  cannot,  like  all  the  other  maxims  discussed  in  this 
chapter,  be  regarded  as  a  general  principle. 


SECTION  xn. 

EQUITY  ACTS  IN  PERSONAM,  AND  NOT  IN  REM. 

ANALYSIS. 

I  428.  Origin  and  original  meaning  of  this  principle. 
S  429.  In  what  sense  equitable  remedies  do  operate  in  rem. 
i{  430,431.  Tlie  principle  that  courts  of  equity  act  upon  the  conscience  of  a 
party  explained. 
S  431.  The  same,  per  Lord  Westbury. 

§  428.  Origin  and  Original  Meaning. —  I  have  already  had 
occasion,  while  describing  the  nature  of  equity  and  of  equi- 
table remedies  lq  a  former  chapter,  to  explain  the  origin  of 
this  maxim,  and  the  leading  conception  which  it  originally 
embodied.  In  the  infancy  of  the  court  of  chancery,  while 
the  chancellors  were  developing  their  system  in  the  face 
of  a  strong  opposition,  in  order  to  avoid  a  direct  collision 
with  the  law  and  with  the  judgments  of  law  courts,  they 
adopted  the  principle  that  their  own  remedies  and  decrees 
should  operate  in  personam  upon  defendants,  and  not  in 
rem.  The  meaning  of  this  simply  is,  that  a  decree  of  a 
court  of  equity  while  declaring  the  equitable  estate,  interest^. 


709        EQUITY   ACTS   IN   PERSONAM,   AND   NOT   IN   REM.  §  425 

or  right  of  the  plaintiff  to  exist,  did  not  operate  by  its  own 
intrinsic  force  to  vest  the  plaintiff  with  the  legal  estate, 
interest,  or  right  to  which  he  was  pronounced  entitled;  it 
was  not  itself  a  legal  title,  nor  could  it  either  directly  or 
indirectly  transfer  the  title  from  the  defendant  to  the  plain- 
tiff. A  decree  of  chancery  spoke  in  terms  of  personal  com- 
mand to  the  defendant,  but  its  directions  could  only  be 
carried  into  effect  by  his  personal  act.  It  declared,  for 
example,  that  the  plaintiff  was  equitable  owner  of  certain 
land,  the  legal  title  of  which  was  held  by  the  defendant, 
and  ordered  the  defendant  to  execute  a  conveyance  of  the 
estate;  his  own  voluntary  act  was  necessary  to  carry  the 
decree  into  execution;  if  he  refused  to  convey,  the  court 
could  endeavor  to  compel  his  obedience  by  fine  and  im- 
prisonment. The  decree  never  stood  as  a  title  in  the  place  of 
an  actual  conveyance  by  the  defendant;  nor  was  it  ever 
carried  into  effect  by  any  officer  acting  in  the  defendant's 
name.  It  has  also  been  shown  that  this  original  character  of 
equitable  remedies  and  decrees  has  been  greatly  modified  by 
statute  in  the  United  States.  Under  this  legislation  decrees 
are  made  to  operate  of  themselves,  wherever  necessary,  as 
a  sufficient  title;  they  either  transfer  the  estate  by  their 
own  force,  without  any  actual  conveyance  from  the  defend- 
ant, or  they  are  carried  into  execution  by  officers  purporting 
to  act  in  the  defendant's  name  and  stead.  Side  by  sid^ 
with  this  most  important  statutory  change,  the  original  per- 
sonal character  of  the  remedies  is  still  left  wherever  the 
alteration  would  be  impossible,  as,  for  example,  wherever  a 
decree  simply  restrains  the  defendant  from  doing  any 
specified  act,  and  wherever  the  jurisdiction  is  exercised  with 
reference  to  a  subject-matter  situated  beyond  the  territorial 
cognizance  of  the  court.^  * 

1  See  Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444,  2  Lead.  Cas.  Eq.,  4th  Anu 
ed.,  1806,  and  notes. 

(a)  Subject-matter  beyond  juris-  Atl.  522  (citing  and  discussing  many 
diction:  Schmaltz  v.  York  Mfg.  Co.,  authorities  on  this  point).  For  a 
204  Pa.  St.  1,  93  Am.  St.  Rep.  782,  53       more  detailed  exposition  of  the  doe- 


§§  429,  430  EQUITY   JURISPKUDENCE.  710 

§  429.  In  What  Sense  Equitable  Remedies  do  Operate  in 
I^em. —  It  has  also  been  shown,  when  explaining  the  nature 
of  equitable  remedies,  that  they  generally  are,  in  another 
special  sense,  essentially  in  rem,  and  not  in  personam. 
Equitable  remedies  very  seldom  consist  of  personal  judg- 
ments, general  recoveries  payable  out  of  the  defendant's 
assets.  The  fundamental  theory  of  the  remedial  action  of 
equity  is,  that  it  deals  with  specific  and  identified  land  or 
chattels,  or  specific  funds,  whether  consisting  of  securities 
and  other  things  in  action  or  of  money,  and  it  seeks  to  deter- 
mine, declare,  and  maintain  the  estates,  interests,  and 
rights  of  the  litigant  parties  in  and  to  such  identified  lands, 
chattels,  or  funds." 

§  430.  Operation  of  Equity  upon  the  Conscience  of  a  Party. — 
There  is  still  a  third  aspect  of  the  remedial  action  of  equity 
which  should  be  accurately  understood,  since  it  lies  at  the 
-foundation  of  much  of  the  dealing  of  the  court  of  chancery 
with  the  legal  estates  and  rights,  and  especially  those  con- 
ferred by  the  positive  provisions  of  statutes.  1  mean  the 
most  important  principle,  that  equity  acts  upon  the  con- 
science of  a  party,  imposing  upon  him  a  personal  obligation 
of  treating  his  property  in  a  manner  very  different  from 
that  which  accompanies  and  is  permitted  by  his  mere  legal 
title.  Whenever  a  legal  estate  is,  by  virtue  of  some  positive 
rule  of  either  the  common  or  statute  law,  vested  in  A,  but 
this  legal  estate  in  A  is  of  itself  a  violation  of  some  settled 
equitable  doctrines  and  rules,  so  that  B  is  equitably  entitled 
to  the  property  or  to  some  interest  in  or  claim  upon  it, 
equity  grants  its  relief,  and  secures  to  B  his  right,  not  by 
denying,  or  disregarding,  or  annulling,  or  setting  aside  A'rf 
legal  estate,  but  by  admitting  its  existence,  by  recognizing  it 
as  v/holly  vested  in  A,  and  then  by  working  upon  A's  con- 
Bclence,  and  imposing  upon  him  the  duty  of  holding  and 

trine  that   equity  acts   in  personam,       kinds  of  equitable  remedies,  see  post, 
«nfl  not  in  rem,  OHpeciully  with  rcfc-r-        §§   1317,  1318,  and  Pom.  Eq.  Rem. 
.enc«  to  ilH  effect   upon   tlie   different  (a)  Cited  in  Sharon  v.  Tucker,  144 

U.  S.  542,  12  Sup.  Ct.  720. 


711         EQUITY    ACTS    IN    PEIiSONAM,    AND    NOT    IN    REM.  §  430 

using  liis  legal  title  for  B  's  benefit,  so  that,  in  the  ordinary- 
language  of  the  courts,  he  is  treated  as  a  trustee  for  B.  One 
or  two  familiar  examples  will  illustrate  the  working  of  this 
fundamental  principle.  A  testator  has  given  certain  lands 
to  A  by  a  will  properly  executed ;  but  A  procured  the  devise 
by  wrongful  representations  made  to  the  testator,  and  the 
lands  should,  by  the  doctrines  of  equity,  belong  to  B.  The 
statute  of  wills,  however,  is  peremptory  in  its  prescribed 
mode  of  executing  a  will ;  there  can  be  no  will  without  con- 
forming to  the  statutory  requirements.  Equity  does  not 
attempt  to  overrule  the  statute ;  it  admits  the  validity  of  the 
will,  and  the  legal  title  vested  in  A,  but  on  account  of  A's 
wrongful  conduct  in  procuring  the  devise  to  himself,  it  says 
that  he  cannot  conscientiously  hold  and  enjoy  that  legal  title 
for  his  own  benefit,  and  imposes  upon  his  conscience  the 
obligation  to  hold  the  land  for  B  's  benefit,  as  the  equitable 
owner  thereof ;  and  then  arises  the  further  obligation  upon 
his  conscience  to  perfect  and  complete  B  's  equitable  owner- 
ship by  a  conveyance."  In  exactly  the  same  manner  the 
equity  of  a  party  is  worked  out  in  all  those  cases  where  the 
peremptory  provisions  of  the  statute  of  frauds  stand  in 
the  way  of  any  legal  right  or  claim,  as  in  the  specific  enforce- 
ment of  a  verbal  contract  for  the  sale  of  land,  which  has 
been  part  performed  by  the  plaintiff.  Another  illustration 
of  the  principle  may  be  seen  in  the  doctrine  established  by 
courts  of  equity  concerning  the  effect  of  the  registry  or  re- 
cording acts.  These  statutes  declare,  in  general  terms,  and 
without  any  exception,  that  a  subsequent  grantee  or  mort- 
gagee who  first  puts  his  deed  or  mortgage  upon  record 
shall  thereby  acquire  the  precedence  over  a  prior  unre- 
corded conveyance.  Courts  of  equity  have  added  the  rule 
that  if  the  subsequent  party,  who  thus  obtains  the  legal 
benefit  of  a  record,  has  notice,  his  recorded  instrument 
shall  still  be  subordinate  to  the  prior  unrecorded  convey- 
ance of  which  he  was  charged  with  notice.    In  giving  this 

(a)  See  post,  §§  919,  1054. 


§  431  EQUITY   JURISPRUDENCE.  712 

effect  to  a  notice,  the  courts  of  equity  do  not  assume  to 
nullify  the  provisions  of  the  recording  act ;  they  admit  that 
a  subsequent  grantee  has,  by  means  of  his  record,  obtained 
the  complete  legal  title,  which  cannot  be  directly  set  aside 
nor  disturbed;  but  they  say  that  the  notice  of  the  prior 
conveyance  makes  it  unconscientious  for  him  to  hold  and 
enjoy  that  legal  title  for  his  own  benefit,  and  they  impose 
upon  his  conscience  the  obligation  of  holding  it  for  the 
benefit  of  the  prior  unrecorded  grantee.^ 

§  431.  This  principle  which  I  have  attempted  to  explain 
and  illustrate  in  the  preceding  paragraph,  and  which  under- 
lies a  very  large  part  of  the  remedial  action  of  equity,  was 
stated  with  his  usual  clearness  and  accuracy  by  Lord 
Westbury  in  the  following  passage :  '  *  The  court  of  equity 
has,  from  a  very  early  period,  decided  that  even  an  act  of 
Parliament  shall  not  be  used  as  an  instrument  of  fraud ;  and 
if  in  the  machinery  of  perpetrating  a  fraud  an  act  of  Par- 
liament intervenes,  the  court  of  equity,  it  is  true,  does  not 
set  aside  the  act  of  Parliament,  but  it  fastens  on  the  indi- 
vidual who  gets  a  title  under  that  act,  and  imposes  upon  him 
a  personal  obligation,  because  he  applies  the  act  as  an 
instrument  for  accomplishing  a  fraud.  In  this  way  the 
court  of  equity  has  dealt  with  the  statute  of  wills  and  the 
statute  of  frauds. ' '  ^  Although  Lord  Westbury  here  speaks 
only  of  a  case  where  the  equitable  rights  of  one  person 
arise  from  the  fraud  of  another  who  has  thereby  obtained 
the  legal  estate,  yet  the  principle  applies,  whatever  be  the 
grounds  and  occasion  of  the  equitable  interests  and  claims 
which  are  asserted  in  opposition  to  the  one  having  the  legal 
title.^' 

1  McCormick  v.  Grogan,  L.  R.  4  H.  L.  82,  97.  This  case  was  concerning  a 
devise  which  had  been  obtained  by  fraud. 

2  In  the  very  recent  case  of  Greaves  v.  Tofield,  L.  R.  14  Ch.  Div.  563,  577, 
w'liich  arose  upon  tlie  effect  of  a  recording  act,  and  of  actual  notice  to  a 
Hubsequent  encumbrancer  who  obtained  the  first  registry,  Bramwell,  L.  J., 
stated  the  principle  as  follows:  "I  understand  the  authorities  to  have  es- 
tabiinhftd  this  beyond  dispute,  that  if  a  man  having  an  estate  agrees  to  sell 

(b)  Sec  §§  G59-6G5. 


713        EQUITY   ACTS   IN    PERSONAM,    AND    NOT    IN    EEM.  §  43! 

it,  or  undertakes  to  grant  an  interest  in  it,  or  a  charge  upon  it,  for  a  valu- 
able consideration,  and  afterwards,  disregarding  the  bargain  he  has  made, 
conveys  to  a  third  person,  or  so  deals  with  it  by  bargain  with  a  third  per- 
son that  he  is  incompetent  to  convey  the  estate  or  grant  the  interest  to  the 
first  which  he  had  agreed  to  do,  and  the  third  person  has  all  along  had: 
notice  of  the  first  contract,  the  conscience  of  the  second  purchaser  is  af- 
fected, and  he  cannot  retain  the  estate  without  giving  the  person  who  en- 
tered into  the  first  contract  that  right  in  it  for  which  he  had  stipulated,  and 
if  necessary,  he  must  join  in  a  conveyance  of  the  estate,  if  the  first  person. 
was  a  purchaser,  or  he  must  join  in  executing  a  charge,  if  it  was  a  charge 
that  was  to  be  executed,  or  a  lease,  if  it  was  a  lease  to  be  granted.  I  under- 
stand the  authorities  further  to  establish  this,  that  that  principle  is  not 
affected  by  those  acts  of  Parliament  which  require  registration  in  order  to 
give  or  to  prevent  a  priority,  but  that  the  conscience  of  the  second  pur- 
chaser, as  I  have  called  him,  is  equally  affected,  and  that  the  intention  of  the 
legislature  in  such  acts  as  those  I  have  referred  to  was  to  afford  a  protection 
to  persons  whose  consciences  were  not  affected,  and  not  to  give  the  second 
purchaser  whose  conscience  was  affected  an  opportunity  of  joining  in  the 
commission  of  that  which  was  a  breach  of  contract  and  a  wrong  to  the  first 
person  who  made  the  bargain."  This  is  a  clear  statement  of  the  principle, 
and  one  would  have  supposed  that  the  very  statement  would  have  carried 
conviction  of  its  essential  justice.  But  the  observations  added  by  Mr. 
Justice  Bramwell,  in  which  he  expresses  a  strong  dissent  from  this  principle, 
and  condemns  other  familiar  principles  of  equity  which  have  been  so  long 
and  so  firmly  established  that  they  may  be  regarded  as  the  foundations  of 
its  jurisprudence,  show  very  clearly  the  danger  to  be  apprehended  from 
associating  purely  law  judges  in  the  administration  of  equity.  His  criticisms 
are  trivial,  and  his  reasoning  is  weak,  but  even  such  criticism  and  reasoning 
coming  from  the  bench  may,  in  time,  undermine  the  whole  system  of  equity. 
The  danger  was  pointed  out  at  the  time  when  the  judicature  act  was  passed 
in  England;  it  has  been  realized  in  some  of  the  states  of  our  own  covmtry, 
where  equity  and  law  have  been  combined,  in  which,  beyond  a  doubt,  equity, 
as  a  system,  ia  being  supplanted  by  the  law  as  administered  from  the  benclu 


I  432  EQUITY   JUKISPEUDENCE.  714 


CHAPTER   II. 

CERTAIN  DISTmCTIVE  DOCTRINES  OF  EQUITY 
JURISPRUDENCE. 


SECTION  I. 

CONCERNING  PENALTIES  AND  FORFEITURES. 

ANALYSIS. 

f  432.  Questions  stated, 
18  433-447.  Penalties;  equitable  relief  against. 

§  433.  General  ground  and  mode  of  interference, 
§  434.  Form  of  relief;  when  given  at  law. 
§§  435,436.  What  are  penalties. 

§  436.  To  secure  the  payment  of  money  alone. 
{§  437-445.  Stipulations  not  penalties. 

§  437.  Stipulations  in  the  alternative. 

S  438.  Ditto,  for  the  reduction  of  an  existing  debt  upon  prompt  payment. 
§  439.  Ditto,  for  accelerating  payment  of  an  existing  debt. 
i§  440-445.  Ditto,  for  "liquidated  damages." 

§  440.  "  Liquidated  damages  "  described  in  general, 
ii  441-445.  Rules  determining  between  liquidated  damages  and  penalties. 
§  441.  1.  Payment  of  a  smaller  sum  secured  by  a  larger. 
§  442.  2.  Agreement  for  the  performance  or  non-performance  of  a  single 

act. 
f  443.  3.  Agreement  for  the  performance  or  non-performance  of  several 

acts  of  different  degrees  of  importance. 
i  444,  4,  The  party  liable  in  the  same  amount  for  a  partial  and  for  a 

complete  default. 
I  445.  5.  Stipulation  to  pay  a  fixed  sxun  on  default  in  one  of  several 

acts. 
I  446.  Specific    performance  of  a  contract  enforced,  although  a  penalty 
is  attached;  party  cannot  elect  to  pay  the  penalty  and  not  per- 
form. 
8  447.  Otherwise  as  to  stipulation  for  liquidated  damages. 
§8   4)S-4(iO.  Of  forfeitures, 

(8  4l!J-4r)8.  Wlicn  equity  will  relieve  against  forfeitures. 
8  450.  General  ground  and  extent  of  such  relief. 
{  451.  Relief  when  forfeiture  is  occasioned  by  accident,  fraud,  mistake, 

RurpriBe,  or  ignorance. 
i  452.  No  relief  when  forfeiture  is  occasioned  by  negligence,  or  is  willful. 


715      CONCEKNING    PENALTIES    AND    FORFEITURES.       §§  432,  433 

^§  453,  454.  Relief  against  forfeitures  arising  from  covenants  in  leases. 

§  455.  Ditto,  from  contracts  for  the  sale  of  lands. 

§  456.  Ditto,  from  other  special  contracts. 

§  457.  Ditto,  of  shares  of  stock  for  non-payment  of  calls. 

§  458.  Ditto,  when  created  by  statute. 
5§  459,  460.  Equity  will  not  enforce  a  forfeiture. 

§  432.  Questions  Stated. — In  this  chapter  I  purpose  to  dis- 
<iuss  certain  peculiarly  equitable  doctrines  which,  to  a 
greater  or  less  extent,  run  through  and  affect  the  entire 
system  of  equity  jurisprudence.  As  neither  of  them  is  con- 
fined in  its  operation  to  any  single  equitable  estate  or 
interest,  nor  to  any  one  equitable  remedy,  it  seems  ex- 
pedient, in  order  to  avoid  unnecessary  repetitions,  that  they 
should  be  treated  of  in  a  preliminary  division  by  themselves. 
Each  of  them  may  be,  and  is,  applied  to  several  different 
equitable  estates  or  interests,  and  may  be  carried  into 
effect  by  means  of  several  different  equitable  remedies; 
and  they  may  all,  therefore,  be  considered  as  general, 
although  not  perhaps  universal.  Furthermore,  all  these 
doctrines  are  distinctively  equitable  in  their  nature;  they 
are  peculiar  to  the  equity  system  of  jurisprudence,  and,  so 
far  as  they  go,  serve  to  distinguish  it  from  the  law.  The 
particular  doctrines  which  will  be  treated  of  in  the  sections 
of  this  chapter  are  those  concerning  penalties  and  forfeit- 
ures, election,  satisfaction,  priorities,  notice,  performance, 
and  the  like.  In  the  present  section  I  shall  examine  the 
doctrine  concerning  penalties  and  forfeitures,  and  shall 
treat,  in  order,  first,  of  penalties,  and  second,  of  forfeitures. 

§  433.  Penalties  —  Ground  and  Mode  of  Interference.  * —  The 
true  ground  of  equitable  interposition  and  relief  in  cases  of 
penalties  and  forfeitures  which  might  be  enforced  at  law 
was  stated  by  Lord  Macclesfield,  in  the  leading  case  of 
Peachy  v.  Duke  of  Somerset,  to  be  '^  from  the  original  intent 
of  the  case,  and  the  court  can  give  a  party,  hy  way  of  recom- 

(a)  Cited  with  approval  in  Noyes  137,  25  U.  S.  App.   134;   Lake  View 

V.  Anderson,  124  N.  Y.  175,  26  N.  E.  M.  &  M.  Co.  v,  Hannon,  93  Ala.  87,  9 

316,  21  Am.  St.  Rep.  657;  Gay  Mfg.  South.  539, 
Co.  V.  Camp,  65  Fed.  794,  13  C.  C.  A, 


§  433  EQUITY    JUKISPRUDENCE.  716^ 

pense,  all  that  he  expected  or  desired/'  He  confined  the 
interference  of  equity,  however,  to  those  cases  in  which  the 
penalty  is  intended  only  to  secure  the  payment  of  money.* 
The  doctrine  was  soon  extended,  so  that  it  embraces  cases 
where  the  penalty  is  used  not  merely  to  secure  a  money 
payment,  but  as  a  security  for  the  performance  of  some 
collateral  act.^  In  its  most  general  scope  and  operation  the 
doctrine  may  be  stated  as  follows :  Wherever  a  penalty  or 
a  forfeiture  is  used  merely  to  secure  the  payment  of  a  debt, 
or  the  performance  of  some  act,  or  the  enjoyment  of  some 
right  or  benefit,  equity,  considering  the  payment,  or  per- 
formance, or  enjoyment  to  be  the  real  thing  intended  by  the 
agreement,  and  the  penalty  or  forfeiture  to  be  only  an 
accessory,  will  relieve  against  such  penalty  or  forfeiture 
by  awarding  compensation  instead  thereof,  proportionate 
to  the  damages  actually  resulting  from  the  non-payment, 
or  non-performance,  or  non-enjoyment,  according  to  the 
stipulations  of  the  agreement.  The  test  which  determines 
whether  equity  will  or  will  not  interfere  in  such  cases  is 
the  fact  whether  compensation  can  or  cannot  be  adequately 
made  for  a  breach  of  the  obligation  which  is  thus  secured. 
If  the  penalty  is  to  secure  the  mere  payment  of  money, 
compensation  can  always  be  made,  and  a  court  of  equity  will 
relieve  the  debtor  party  upon  his  paying  the  principal  and 
interest.  If  it  be  to  secure  the  performance  of  some  col- 
lateral act,  and  compensation  for  a  non-performance  can  be 

1  Peachy  v.  Duke  of  Somerset,  1  Strange,  447. 

2  Sloman  v.  Walter,  1  Brown  Ch.  418,  per  Lord  Thurlow.  The  doctrine 
of  equitable  interference  to  relieve  against  penalties  and  forfeitures  has 
been  described  and  discussed  by  some  writers  as  a  branch  of  the  jurisdiction- 
in  cases  of  accident.  In  very  ancient  times,  when  the  powers  of  the  court 
of  chancery  were  restricted  by  the  language  of  the  royal  decree  to  certain 
specified  heads,  as  good  faith,  conscience,  fraud,  mistake,  and  accident, 
and  it  was  necessary  that  every  new  exercise  of  power  should  be  referred  to 
some  one  of  these  heads,  it  may  have  been  claimed  that  the  jurisdiction  over 
penalties  belonged  to  the  head  of  accident.  But  it  is  evident  that  this  id 
not  the  true  source  of  the  jurisdiction ;  there  can  be  no  pretense  of  any  acci- 
dent in  the  execution  of  agreements  eontaining  penalties.  The  doctrine 
has  a  deeper  foundation  in  universal  principles  of  right,  as  shown  in  the 
praccding   chapter,   section   11. 


717  CONCEENTKG   PENALTIES    AND    FORFEITURES.  §  434 

made,  a  court  of  equity  will  ascertain  tlie  amount  of 
damages,  and  relieve  upon  tlieir  payment.^  It  is  a  familiar 
doctrine,  therefore,  that  if  the  penalty  is  inserted  to  secure 
the  payment  of  a  pecuniary  obligation,  relief  against  it  will 
be  granted  to  the  debtor  upon  his  payment  of  the  real 
amount  due  and  secured,  together  with  interest  and  costs, 
if  any  have  accrued.*  Wliere  the  penalty  is  to  secure  the 
performance  of  some  collateral  act  or  undertaking,  equity 
will  interpose,  if  adequate  compensation  can  be  made  to  the 
•creditor  party.  The  original  practice  in  such  cases  was 
for  the  court  of  equity  to  retain  the  bill^  direct  an  issue  to 
ascertain  the  amount  of  damages,  and  to  grant  relief  upon 
payment  of  the  damages  thus  assessed  by  the  jury.*^  By 
the  more  modern  practice  the  court  of  equity  would  doubt- 
less determine  the  amount  of  damages  itself,  without  the 
intervention  of  a  jury. 

§  434.  Form  of  Relief.* — While  the  two  jurisdictions  at 
law  and  in  equity  were  kept  distinct,  although  perhaps 
given  to  the  same  tribunal,  the  form  of  the  remedy  in  which 
relief  was  obtained  against  a  penalty  was  that  of  a  suit 

3  2  Lead.  Cas.  Eq.  4th  Am.  ed.,  2014,  2023,  2044,  and  notes;  Reynolds  v. 
Pitt,  19  Yes.  140,  and  cases  cited  in  the  two  following  notes;  Bowser  v. 
Colby,  1  Hare,  128;  Gregory  v.  Wilson,  9  Hare,  683;  Bracebridge  v.  Buckley, 
2  Price,  200;  Nokes  v.  Gibbon,  3  Drew.  681;  Bargent  v.  Thomson,  4  Giff.  473; 
Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368 ;  Hancock  v.  Carlton,  6  Gray,  39 ; 
Thompson  v.  Whipple,  5  R.  I.  144;  Walker  v.  Wheeler,  2  Conn.  299;  Michigan 
St.  Bank  v.  Hammond,  1  Doug.  (Mich.)  527;  Giles  v.  Austin,  38  N.  Y.  Sup. 
Ct.  215;  62N.  Y.  486. 

4  Elliott  V.  Turner,  13  Sim.  477;  In  re  Dagenham  Dock  Co.,  L.  R.  8  Ch. 
1022;  Skinner  v.  Dayton,  2  Johns.  Ch.  535,  17  Johns.  357;  Deforest  v.  Bates, 

1  Edw.  Ch.  394;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct.  215;  Bowen  v.  Bowen, 
20  Conn.  126;  Carpenter  v.  Westcott,  4  R.  I.  225;  Walling  v.  Aiken,  1  Mc- 
Mull.  Eq.  1;  Moore  v.  Platte,  8  Mo.  467;  Bright  v.  Rowland,  3  How.  (Miss.) 
398. 

5  Hardy  v.  Martin,  1  Brown  Ch.  419,  note;  1  Cox,  26;  Benson  v.  Gibson,  3 
Atk.  395;   Errington  v.  Arnesly,  2  Brown  Ch.  341,  343;   Skinner  v.  Dayton, 

2  Johns.  Ch.  534,  535;  Bowen  v.  Bowen,  20  Conn.  127;  Gould  v.  Bugbee,  6 
Gray,  371,  375;  Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  308;  Pittsburgh  R.  R. 
v.  Mt.  Pleasant  R.  R.,  76  Pa.  St.  481,  490;  Hackett  v.  Alcock,  1  Call,  463. 

(a)  Cited  in  Lake  View  M.  &  M.  Co.  v.  Hannon,  93  Ala.  97,  9  South. 
539. 


§  435  EQUITY    JURISPRUDENCE.  71S 

brought  by  the  debtor  party  to  procure  the  agreement  to 
be  surrendered  up  and  canceled,  or  the  forfeiture  perhaps  to 
be  set  aside,  ujDon  payment  of  the  debt  or  damages ;  and  this 
decree  would  often  be  accompanied  by  an  injunction  re- 
straining an  action  at  law  upon  the  agreement  brought  or 
threatened  by  the  creditor  party.  Under  the  modern  legis- 
lation, and  especially  under  the  reformed  procedure,  the 
rights  of  the  debtor  party  would  be  protected,  and  the  relief 
obtained,  without  any  separate  suit  in  equity,  but  by  an 
equitable  defense  set  up  in  the  action  at  law  by  which  the 
creditor  sought  to  enforce  the  literal  terms  of  the  agree- 
ment. It  has,  however,  become  unnecessary,  in  many 
instances,  to  invoke  the  purely  equitable  jurisdiction  in 
order  to  avoid  penalties.  The  equitable  doctrine,  as  above 
described,  has  to  a  considerable  extent  been  incorporated 
into  the  law,  partly  as  the  result  of  statute,  and  partly  from 
the  gradual  development  of  equitable  principles  in  the  com- 
mon law.  Whatever  be  the  true  explanation,  the  rule  is  now 
very  general,  even  if  not  universal,  that  a  recovery  in 
actions  at  law  upon  contracts  which  contain  an  express 
stipulation  for  a  penalty  is  limited  to  the  actual  debt  due,  or 
the  actual  damages  sustained.^  The  law  courts  have  not, 
however,  gone  to  the  same  length  in  adopting  the  equitable 
principle  in  cases  of  forfeiture. 

§  435.  Penalties  Defined. —  Such  being  the  general  doc- 
trine, the  important  and  practical  inquiry  in  the  vast  ma- 
jority of  cases  is.  What  are  the  distinctive  features  of  a 
penalty?  or,  What  kind  of  stipulation  or  provision  in  an 
agreement  amounts  to  a  penalty,  so  that  it  may  come  within 
the  scope  of  the  equitable  doctrine?  When  the  stipula- 
tion is  intended  to  secure  merely  the  payment  of  money,  the 
test  is  easy  and  plain,  and  well  established.     When  it  is 

1  In  most  of  the  states  the  judgment  at  law  is  limited  to  the  amount 
of  debt  or  dumagos  aetually  due  or  sustained;  in  a  few,  however,  the 
judgment  is  formally  entered  for  the  whole  sum  mentioned  in  the  penalty, 
but  with  a  provision  that  it  is  to  be  satisfied  by  a  payment  of  the  actual 
debt  or  damages. 


719  CONCERNING   PENALTIES    AND    FOEFEITURES.  §  436 

designed  to  secure  the  performance  of  some  collateral  act, 
the  question  is  much  more  difficult  to  answer^  and  involves 
a  statement  of  the  differences  between  penalties  and  pro- 
visions for  the  payment  of  "  liquidated  damages."  The 
question  what  is  and  what  is  not  a  penalty  I  now  proceed 
to  examine. 

§  436.  To  Secure  the  Payment  of  Money  Alone. —  Where 
the  act  secured  to  be  done  is  merely  the  payment  of  money, 
the  test  is  simple  and  well  established.  It  may  be  regarded 
as  a  rule  of  universal  application,  that  if  a  party  for  any 
reason  is  liable  to  pay,  or  binds  himself  to  pay,  a  certain 
sum  of  money,  and  adds  a  stipulation  to  the  effect  that  in 
case  such  sum  shall  not  be  paid  at  the  time  agreed  upon  he 
shall  then  be  liable  to  pay,  or  become  bound  to  pay,  a  larger 
sum  of  money,  the  stipulation  to  pay  the  larger  sum  is  in- 
variably and  necessarily  a  penalty.  Of  course,  in  this  prop- 
osition it  is  undersi;ood  that  the  '*  larger  sum  "  is  not 
simply  the  lawful  interest  accruing  upon  the  principal 
actually  due.  The  same  doctrine  may  be  stated  in  more 
comprehensive  terms,  in  the  language  of  one  of  the  most 
able  of  modern  English  chancellors:  *'  The  law  is  per- 
fectly clear  that  where  there  is  a  debt  actually  due,^  and 
in  respect  of  that  debt  a  security  is  given,  be  it  by  way  of 
mortgage,  or  be  it  by  way  of  stipulation,  that  in  case  of  its 
not  being  paid  at  the  time  appointed,  a  larger  sum  shall 
become  payable  and  be  'paid, —  in  either  of  these  cases  equity 
regards  the  security  that  has  been  given  as  a  mere  pledge 
for  the  debt,  and  it  will  not  allow  either  a  forfeiture  of  the 
property  pledged  or  any  augmentation  of  the  debt  as  a 
penal  provision,  on  the  ground  that  equity  regards  the 
contemplated  forfeiture  which  might  take  place  at  law  with 
reference  to  the  estates  as  in  the  nature  of  a  penal  provi- 
sion against  which  equity  will  relieve  when  the  object  in 
view,  viz.,  the  securing  of  the  debt,  is  attained,  and  regard- 

1  It  should  be  observed  by  the  student  that  the  word  "  due "  is  used 
here  in  its  legal  meaning,  of  something  agreed  to  he  paid,  and  not  in  its  popu- 
lar sense,  of  something  already  payable. 


'§  437  EQUITY   JURISPRUDENCE.  720 

ing  also  the  stipulation  for  the  payment  of  a  larger  sum  of 
money  if  the  sum  be  not  paid  at  the  time  it  is  due,  as  a 
penalty  and  a  forfeiture  against  which  equity  will  relieve."  * 
The  criterion  here  given,  for  all  cases  where  the  mere  pay- 
ment of  a  pecuniary  obligation  is  intended  to  be  secured, 
applies,  it  will  be  observed,  alike  to  a  penalty  and  to  a 
forfeiture.  If  the  additional  stipulation  involves  a  liability 
for  a  larger  sum  of  money  only,  it  is  a  penalty ;  if  it  involves 
the  loss  of  lands,  chattels,  or  securities  pledged,  it  is  a 
forfeiture.  The  same  test,  in  substance,  determines  the 
nature  of  the  provision  by  which  the  performance  of  some 
collateral  act  is  secured.  If  the  act  thus  secured  be  single, 
and  the  compensatory  damages  justly  resulting  from  its 
non-performance  can  be  ascertained  with  reasonable 
•certainty,  and  the  stipulation  binds  the  debtor  party  to  pay 
a  fixed  sum  larger  than  such  amount  of  damages,  then  the 
stipulation  is  a  penalty.^ 

§  437.  Stipulations  not  Penalties  —  Alternative  Stipulations. 
—  Such  being  the  general  test  by  which  to  determine  the 
nature  of  a  penalty,  there  are  certain  kinds  of  stipulations 
not  unfrequently  inserted  in  agreements  which  have  been 
judicially  interpreted  and  held  not  to  be  penalties,  and 
therefore  not  subject  to  be  relieved  against  by  courts  of 
equity.  The  nature  and  effect  of  these  stipulations  I  shall 
briefly  explain.  The  first  instance  is  that  of  a  contract 
by  the  terms  of  which  the  contracting  party  so  binds  himself 
that  he  is  entitled  to  perform  either  one  of  two  alternative 
stipulations,  at  his  option;  and  if  he  elects  to  perform  one 
of  these  alternatives,  he  promises  to  pay  a  certain  sum  of 
money,  but  if  he  elects  to  perform  the  other  alternative, 
then  he  binds  himself  to  pay  a  larger  sum  of  money.  To 
state  the  substance  of  the  agreement  in  briefer  terms,  the 
contracting  party  may  do  either  of  two  things,  but  is  to  pay 

STlioinpson  v.  Hudson,  L.  R.  4  H.  L.  Caa.  1,  15,  per  Hatherley,  L.  C. 
3  Sfy;  jxjst,  §§  440-445,  where  this  subject  is  more  fully  examined,  iinder  the 
head  oi  "  liquidated  damages." 


721  CONCEKNING   PENALTIES    AND    FORFEITURES.  §  437 

higher  for  one  alternative  than  for  the  other.  In  such  a 
case  equity  regards  the  stipulation  for  a  larger  payment,  not 
as  a  penalty,  but  as  liquidated  damages  agreed  upon  by  the 
parties.  It  will  not  relieve  the  contracting  party  from  the 
payment  of  the  larger  sum,  upon  his  performance  of  the 
latter  alternative  to  which  such  payment  is  annexed;  nor, 
on  the  other  hand,  will  it  deprive  him  of  his  election  by  com- 
pelling him  to  abstain  from  performing  whichever  alter- 
native he  may  choose  to  adopt.^  * 

1  French  v.  Macale,  2  Dru.  &  War.  274;  Parfitt  v.  Chambre,  L.  R.  15 
Eq.  36;  Herbert  v,  Salisbury,  etc.,  R'y,  L.  R.  2  Eq.  221;  Hardy  v.  Martin, 
1  Cox,  27.  The  leading  case  in  which  the  doctrine  of  the  text  was  sustained 
is  French  v.  Macale,  2  Dru.  &  War.  274.  Lord  St.  Leonards  states  the 
law  therein  as  follows :  "  If  a  man  covenant  to  abstain  from  doing  a  cer- 
tain act,  and  agree  that  if  he  do  it  he  will  pay  a  sum  of  money,  it  would  seem 
that  he  will  be  compelled  to  abstain  from  doing  that  act;  and  just  as  in  the 
converse  case,  he  cannot  elect  to  break  his  engagement  by  paying  for  his  vio- 
lation of  the  contract.  .  .  .  The  question  for  the  court  to  ascertain  is, 
whether  the  party  is  restricted  by  covenant  from  doing  the  particular 
act,  although  if  he  do  it,  a  payment  is  reserved;  or  whether,  according  to 
the  true  construction  of  the  contract,  its  meaning  is,  that  the  one  party 
shall  have  a  right  to  do  the  act,  on  payment  of  what  is  agreed  upon  as 
an  equivalent.  If  a  man  let  meadow-land  at  two  guineas  an  acre,  and  the 
contract  is,  that  if  the  tenant  choose  to  employ  it  in  tillage  he  may  do  so, 
paying  an  additional  rent  of  three  guineas  an  acre,  no  doubt  this  is  a 
perfectly  good  and  unobjectionable  contract;  the  plowing  up  the  land  is 
not  inconsistent  with  the  contract  which  provides  that  in  case  the  act  is 
done  the  landlord  is  to  receive  an  increased  rent."  Parfitt  v.  Chambre, 
L.  R.  15  Eq.  36,  is  also  a  very  strong  case.  An  award  of  arbitrators  (which 
was,  of  course,  binding  as  a  contract)  directed  that  defendant  should  pay  to 
plaintiff  for  her  life  an  annuity  of  twelve  hundred  pounds  a  year;  and 
that  in  order  to  secure  the  annuity,  defendant  should  within  two  months 
purchase,  on  behalf  of  plaintiff,  a  government  annuity  of  twelve  hundred 
pounds  a  year;  and  that  if  the  annuity  should  not  be  thus  purchased 
within  the  two  months,  then,  in  addition  to  the  annuity,  a  further  sum  of 
one  hundred  pounds  should  become  due  and  payable  by  defendant  to  plain- 
tiff on   the  last  day  of  the  second  month,  and  a  like  sum  of  one  hundred 

(a)  Thus,  in  Smith  v.  Bergengren,  years  by  paying  the  plaintiff  $2,000, 

153  Mass.   236,  26  N.   E.   690,   10  L.  but   not   otherwise.      The   court   held 

R.  A.  768,  the  defendant  covenanted  this  to  be  neither  liquidated  damages 

never  to  practice  his  profession  in  a  nor  a  penalty,  but  a  price  fixed  for 

certain    town    so    long    as    plaintiff  what  the  contract   permitted  him  to 

should  be  in  practice  there,  provided,  do.      See    also    Taylor    v.    Smith,    24 

however,    tlmt    he    should    have    tne  App.  Div.  519,  49  N.  Y.  Supp.  41. 
right  to  do  so  at  any  time  alter  five 

Vol.  1  —  46 


§  438  EQUITY   JURISPRUDENCE.  722 

§  438.  For  the  Reduction  of  an  Existing  Debt  upon  Prompt 
Payment. —  The  second  instance  is  that  of  an  agreement  in 
substance  for  the  reduction  of  an  existing  debt,  on  condition 
of  prompt  payment  by  the  debtor.  A  stipulation  reserving 
to  a  creditor  the  right  to  have  full  payment  of  the  money 
due  on  an  existing  contract,  in  case  there  should  be  a  failure 
to  pay  a  smaller  sum  on  a  specified  day,  is  not  a  penalty. 
Wherever,  therefore,  a  certain  sum  of  money  is  actually  due, 
either  from  a  present  advance  or  from  any  other  cause,  and 
the  creditor  enters  into  an  agreement  with  his  debtor  to  take 
a  lesser  sum  in  satisfaction,  provided  that  lesser  sum  is 
secured  in  a  specified  manner  and  paid  at  a  specified  day, 

pounds  on  the  last  day  of  each  successive  month,  until  such  annuity  should 
be  purchased.  The  award  added :  "  These  monthly  payments  are  to  be 
considered  as  additional  to  the  payments  due  in  respect  of  the  annuity,  and 
as  a  penalty  for  delay  in  the  purchase  and  securing  of  the  same."  The 
defendant  never  purchased  any  annuity.  This  suit  is  brought  to  recover 
six  himdred  pounds,  one  half-year's  installment  due  of  the  annuity,  and 
also  seven  hundred  pounds  for  seven  monthly  payments  unpaid  of  the 
one  hundred  pounds  additional.  The  counsel  for  the  plaintiff  claimed  (p.  38) 
that  the  contract  was  one  in  the  alternative,  either  to  purchase  and  settle 
an  annuity  or  to  pay  an  annuity  plus  one  hundred  pounds  a  month,  until 
purchase  and  settlement.  The  defendant's  counsel  claimed  that  the  provision 
for  tlie  one  hundred  pounds  per  month  was  only  a  penalty,  and  would  not  be 
enforced,  and  that  plaintiff  was  only  entitled  to  recover  the  six  hundred 
pounds,  with  nominal  damages  for  the  delay.  Bacon,  V.  C,  held  (pp.  39,  40) 
that  the  use  of  the  word  "  penalty,"  in  the  contract,  was  not  decisive ;  and 
after  repeating  the  substance  of  the  contract  as  above,  said :  "  Wlienever 
the  defendant  saw  fit  he  might  have  relieved  himself  from  the  obligation 
of  that  payment  [the  one  hundred  pounds  a  month]  by  performing  the 
other  branch  of  the  contract,  namely,  the  purchase  of  a  government  annuity. 
Nothing  can  be  clearer  and  plainer.  *  Penalty  '  it  is,  but  penalty  in  order 
to  secure  the  performance  of  the  other  branch  of  the  contract,  with  per- 
fect power  and  liberty  for  the  person  upon  whom  the  burden  is  cast  to  relieve 
himself  from  the  penalty  or  additional  payment  whenever  he  shall  think  fit. 
That  is  not  a  penalty  which  courts  of  common  law  or  courts  of  equity  can 
allow  to  be  relinquislied  or  satisfied,  except  upon  the  terms  of  performing 
that  very  tiling  wliich  the  introduction  of  the  penalty  imposes  in  order 
to  effectuate  it."  In  Hardy  v.  Martin,  1  Cox,  27,  Lord  Rosslyn,  speaking 
of  such  an  alternative  contract  as  is  described  in  the  text,  said:  "  It  was  the 
demise  of  land  to  a  lessee,  to  do  with  it  as  he  thought  proper;  but  if  he 
used  it  in  one  way  he  was  to  pay  one  rent;  and  if  in  another,  another; 
tliat  is  a  different  case  from  an  agreement  not  to  do  a  thing,  with  a  penalty 
for  doing  it."  To  tlic  same  general  effect  is  Herbert  v.  Salisbury,  etc.,  R'y, 
L.  il.  2  ]•:<!.  221,  224,  225,  per  Lord  Komilly,  M.  R. 


723  CONCERNING   PENALTIES    AND    FORFEITURES.  §  438 

but  if  any  of  the  stipulations  of  the  agreement  are  not  per- 
formed by  the  debtor  according  to  the  terms  thereof,  then- 
the  creditor  shall  be  entitled  to  be  paid  and  to  recover  the 
whole  of  the  original  debt,  such  provision  for  a  return 
by  the  creditor  to  his  original  rights  does  not  constitute- 
a  penalty,  and  equity  will  not  interfere  to  prevent  its 
enforcement.^  * 

1  Thompson  v.  Hudson,  L.  R.  4  H.  L.  1 ;  reversing  L.  R.  2  Eq.  612;  L.  R.  2 
Ch.  255.  The  agreement  in  this  case  was  the  same  as  described  in  the  text;, 
a  certain  sum  was  due,  and  the  creditor  agreed  to  take  a  less  sum  in  satis- 
faction if  it  was  secured  by  mortgage  in  a  specified  manner  and  was  paid  on. 
a  specified  day;  otherwise  the  original  sum  was  to  become  due.  The  mort- 
gage for  the  lesser  sum  was  given,  but  was  not  paid.  The  master  of  rolls^. 
Lord  Romilly,  held  the  provision  a  penalty,  and  that  the  creditor  could 
only  recover  the  smaller  sum.  This  decision  was  affirmed  on  appeal  by  a 
divided  court,  Lord  Chancellor  Chelmsford  agreeing  with  the  view  taken  by 
the  master  of  rolls,  and  Lord  Justice  Turner  dissenting.  On  appeal  to  the- 
house  of  lords,  the  decisions  below  were  reversed,  and  the  provision  was. 
declared  not  to  be  a  penalty,  but  a  contract  binding  in  equity  as  well  as 
at  law.  Lord  Chancellor  Hatherley,  after  the  passage  quoted  in  the  note 
under  the  preceding  paragraph,  proceeded  as  follows:  "It  is  equally  clear,, 
upon  the  other  hand,  that  where  there  is  a  debt  due,  and  an  agreement  is  en- 
tered into  at  the  time  of  that  debt  having  become  due,  and  not  being  paid,. 
in  regard  to  further  indulgence  to  be  conceded  to  the  debtor,  or  further  time 
to  be  accorded  to  him  for  the  payment  of  the  debt,  or  in  regard  to  his  paying- 
it  immediately,  if  that  be  a  portion  of  the  stipulations  of  the  agreement,  or 
at  some  future  time  which  may  be  named,  and  the  creditor  is  willing  to 
allow  him  certain  advantages  and  deductions  from  that  debt,  as  well  as  to 
extend  the  time  of  its  payment,  if  adequate  and  satisfactory  security  is- 
afforded  him  as  a  consideration,  then  it  is  perfectly  competent  to  the  cred- 
itor to  say  that  if  the  payinent  is  not  made  modo  et  forma  according  to  the 
stipulation,  the  right  to  the  original  debt  reverts."  Lord  Westbury,  in  the 
same  case,  said  (p.  27)  :  "It  is  right  and  rational  for  a  creditor  to  say  to 
his  debtor,  '  Provided  you  pay  me  half  of  the  debt  or  two  thirds  of  the  debt 
on  an  appointed  day,  I  will  release  you  from  the  rest,  and  will  accept  the 
money  so  paid  in  discharge  of  the  whole  debt;  but  if  you  do  not  make 
payment  of  it  on  that  day,  then  the  whole  debt  shall  remain  due  to  me, 
and  1  shall  be  at  liberty  to  recover  it;'  and  this  is  the  view  which  a  court 
of  equity  will  adopt.  ...  If  you  were  to  put  that  proposition  to  any. 
plain  man  walking  the  streets  of  London,  there  could  be  no  doubt  at  all' 
that  he  would  say  that  it  is  reasonable,  and  accordant  with  common  sense.. 
But   if  he  was  told   that   it   was   requisite  to  go   to   those   tribunals   before- 

(a)   See  also  U.  S.  Mortgage  Co.  v.  is  cited  in  this  case,  but  the  rule  as 

Sperry,    138  U.   S.   31.3,   II   Sup.   Ct.  laid    down    is   a    paraphrase   of   this 

321;    Walsh    v.    Curtis    (Minn.),    76  section  of  the  text). 
N.   W.   52    (section   430   of   the   text 


§  439  EQUITY   JURISPRUDENCE.  724 

§  439.  For  Acceleration  of  Payment  of  an  Existing  Debt. — 
The  third  instance  of  what  is  not  a  penalty  is  that  of  a 
contract,  not  that  the  amount  of  a  debt  should  be  in- 
creased, but  that  in  a  specified  event  the  time  for  the  pay- 
ment of  a  certain  sum  due  shall  be  accelerated.  It  is  there- 
fore settled  by  the  overwhelming  weight  of  authority  that 
if  a  certain  sum  is  due  and  secured  by  a  bond,  or  bond 
and  mortgage,  'or  other  form  of  obligation,  and  is  made 
payable  at  some  future  day  specified,  with  interest  thereon 
made  payable  during  the  interval  at  fixed  times,  annually, 
or  semi-annually,  or  monthly,  and  a  further  stipulation 
provides  that  in  case  default  should  occur  in  the  prompt 
payment  of  any  such  portion  of  interest  at  the  time  agreed 
upon,  then  the  entire  principal  sum  of  the  debt  should  at 
once  become  payable,  and  payment  thereof  could  be  en- 
forced by  the  creditor,  such  a  stipulation  is  not  in  the 
nature  of  a  penalty,  but  will  be  sustained  in  equity  as  well 
as  at  law.  In  exactly  the  same  manner,  if  a  certain  sum 
is  due  and  is  secured  by  any  form  of  instrument,  and  is 
made  payable  in  specified  installments,  with  interest,  at 
fixed  successive  days  in  the  future,  and  a  further  stipu- 
lation provides  that  in  case  of  a  default  in  the  prompt 
payment  of  any  such  installment  in  whole  or  in  part  at 
the  time  prescribed  therefor,  then  the  whole  principal  sum 
of  the  debt  should  at  once  become  payable,  and  payment 
thereof  could  be  enforced  by  the  creditor,  such  stipula- 
tion has  nothing  in  common  with  a  penalty,  and  is  as  valid 
and  operative  in  equity  as  at  the  law.^  *    The  stipulation 

you  could  get  that  plain  principle  and  conclusion  of  common  sense  accepted 
as  law,  he  would  undoubtedly  hold  iip  his  hands  with  astonishment  at  the 
state  of  the  law."  See  also  Ford  v.  Lord  Chesterfield,  19  Beav.  428;  Davis  v. 
Thomas,  1  Russ.  &  M.  60G;  Ex  parte  Bennet,  2  Atk.  527;  Herbert  v.  Salis- 
bury, etc.,  R'y,  L.  R.  2  Eq.  221,  224,  per  Lord  Romilly;  and  see  cases  cited 
under  the  next  paragraph. 

1  Sterne  v.  Beck.  1  De  Gex,  J.  &  S.  595,  11  Week.  Rep.  791;  Stanhope 
V.  Manners,  2  Eden,   197;   People  v.  Superior  Court  of  New  York,   19   Wend. 

(a)  Cited  with  approval  in  Moor.^  v.  WcsterhofT,  58  Neb.  379,  78  N.  W. 
T.  Sargent,  112  hid.  484,  H  N.  E.  724,  76  Am.  St.  Rep.  101;  Curran  v. 
466;   Connecticut  Alut.  Life  Ins.  Co.       Houston,  201   111.  4J2,  66  N.  E.  228. 


725  CONCERNING   PENALTIES    AND    FORFEITURES.  §  439 

is  sometimes  to  the  effect  tliat  if  a  default  in  payment  con- 
tinues for  a  specified  number  of  days,  and  sometimes  that 
the  creditor  may  elect  to  treat  the  whole  debt  as  payable; 
but  the  same  rule  applies  to  all  such  forms.  The  provi- 
sion for  accelerating  the  time  of  payment  of  the  whole 
debt  in  this  manner  may,  of  course,  be  waived  by  the  cred- 

104;  Noyes  v.  Clark,  7  Paige,  179,  32  Am.  Dec.  620;  Ferris  v.  Ferris,  28 
Barb.  29;  Baldwin  v.  Van  Vorst,  10  N.  J.  Eq.  577;  Martin  v.  Melville,  11  N.  J. 
Eq.  222;  Robinson  v.  Loomis,  51  Pa.  St.  78;  Schooley  v.  Romain,  31  Md. 
574,  579,  100  Am.  Dec.  87;  Ottawa  Plank  Road  Co.  v.  Murray,  15  111.  337; 
Basse  v.  Gallegger,  7  Wi».  442,  76  Am.  Dec.  225 ;  Marine  Bank  v.  International 
Bank,  9  Wis.  57,  68;  Berrinkott  v.  Traphagen,  39  Wis.  219;  Bennett  v. 
Stevenson,  53  N.  Y.  508;  Malcolm  v.  Allen,  49  N.  Y.  448;  Mallory  v.  West 
Shore,  etc.,  R.  R.,  35  N.  Y.  Sup.  Ct.  175;  Willis  v.  O'Brien,  35  N.  Y.  Sup. 
Ct.  536;  Gulden  v,  O'Byrne,  7  Phila.  93;  Mobray  v.  Leekie,  42  Md.  474; 
Wilcox  V.  Allen,  36  Mich.  160;  Harper  v.  Ely,  56  111.  179;  Meyer  v.  Graeber, 
19  Kan.  165;  Pope  v.  Hooper,  6  Neb.  178;  Howell  v.  Western  R.  R.,  94  U.  S. 
463.  In  Malcolm  v,  Allen,  49  N.  Y.  448,  the  doctrine  was  carried  to  its  utmost 
possible  length.  The  mortgage  provided  that  upon  non-payment  of  interest 
for  thirty  days  after  it  became  due,  the  mortgagee  might  elect  to  treat  the 
■whole  principal  sum  as  due.  An  installment  and  interest  fell  due  and 
were  not  paid.  Before  the  thirty  days  were  ended  in  which  to  make  his  elec- 
tion, the  mortgagee  commenced  a  foreclosure  suit  based  only  upon  the  in- 
stallment and  interest  then  due  and  payable.  The  thirty  days  having  ex- 
pired while  this  suit  was  pending,  and  the  installment  and  interest  not  hav- 
ing been  paid,  the  mortgagee  elected  to  treat  the  whole  as  due;  the  court 
held  that,  having  thus  made  his  election,  he  could  not  be  compelled  to  ac- 
cept the  installment  and  interest  and  waive  the  stipulation;  also,  that  he 
did  not  estop  himself  from  enforcing  the  stipulation  by  commencing  the 
suit  before  the  thirty  days  had  expired,  in  order  to  foreclose  merely  for 
the  installment  and  interest  then  becoming  payable,  nor  even  by  receiving 
payment  of  the  installment  of  principal  after  the  thirty  days  had  ended.  In 
Howell  V.  Western  R.  R.,  94  U.  S.  463,  it  was  held  that  where  a  railroad 
company  was  authorized  by  statute  to  issue  its  bonds  which  should  not  ma- 
ture for  thirty  years,  to  be  secured  by  a  mortgage  of  its  property,  a  pro- 
vision in  the  mortgage,  that  on  default  in  the  payment  of  any  interest  coupon 
the  whole  principal  sum  mentioned  in  the  bond  should  become  payable,  was 
void,  as  being  contrary  to  the  statutory  authority.     But  the  mortgage  waa 

See  also  Magnusson  v.  Williams,  111  advertised  a  sale.  The  debtor  ten- 
Ill.  450;  Hoodless  v.  Reid,  112  Hi.  dered  the  amount  of  interest  together 
105;  Whitcher  v.  Webb,  44  Cal.  127.  with  costs  before  the  sale,  but  the 
In  Whelan  v.  Reilly,  61  Mo.  565,  trustee  refused  to  receive  it  unless 
a  deed  of  trust  provided  that  the  the  amount  of  the  principal  was  paid, 
whole  amount  should  become  due  and  proceeded  with  the  sale.  The 
upon  default  in  payment  of  interest.  court  held  that  under  these  circum- 
Default   was   made   and   the   trustee  stances  the  sale  should  be  set  aside. 


§  439  EQUITY   JURISPRUDENCE.  726 

itor,  especially  when  it  is  made  to  depend  upon  his  elec- 
tion.^'' It  seems  also  that  a  court  of  equity  may  relieve 
against  the  effect  of  such  provision,  where  the  default  of  the 
debtor  is  the  result  of  accident  or  mistake,  and  a  fortiori 
when  it  is  procured  by  the  fraud  or  other  inequitable  con- 
duct of  the  creditor  himself.^  * 

held  otherwise  valid.  Notwithstanding  this  array  of  authority,  a  few  of  the 
earlier  cases  pronounced  such  a  provision  in  a  bond  or  mortgage  to  be  a 
penalty,  and  therefore  contrary  to  the  well-settled  doctrine  of  equity  juris- 
prudence. See  Mayo  v.  Judah,  5  Munf.  495.  It  has  also  been  held  in  at 
least  one  case  that  where  a  certain  sum  is  due  and  payable  by  installments, 
u-ithout  interest,  a  stipulation,  that  upon  default  in  the  prompt  payment 
of  any  installment  the  whole  principal  shall  at  once  become  payable,  is, 
in  effect,  a  penalty,  or  rather  a  forfeiture  of  the  interest  which  the  debtor 
would  be  entitled  to  have  discounted  or  rebated  upon  his  payment  of  the 
-debt  before  it  was  due  and  payable,  and  therefore  such  a  stipulation  should 
be  relieved  against  by  a  court  of  equity:  Tiernan  v.  Hinman,  16  111.  400. 
I  will  add  that  in  Sterne  v.  Beck,  1  De  Gex,  J.  &  S.  595,  600,  601,  the  lords 
justices,  while  laying  down  the  rule  which  they  approve,  state,  apparently 
with  great  care,  that  the  debt  is  payable  in  installments,  with  interest;  and 
this  expression  is  repeated  by  them  on  every  occasion  when  the  terms  of  the 
■  agreement  to  which  the  rule  applies  are  mentioned.  It  is  hardly  possible 
to  avoid  the  inference  that  they  regarded  the  payment  of  interest  with  the 
■installments  as  an  important  element  of  the  rule  which  they  adopt. 

2  Langridge  v.  Payne,  2  Johns.  &  H.  423. 

3  In  Martin  v.  Mellville,  11  N.  J.  Eq.  222,  it  was  held  that  equity  may 
•relieve  where  the  default  of  the  debtor  in  such  a  case  is  the  result  of  accident 
or  mistake;  and  in  Wilcox  v.  Allen,  36  Mich.  160,  it  was  held  that  the  for- 
feiture from  such  a  clause  should  not  be  enforced  where  the  cause  of  the 
delay  in  payment  was  that  the  mortgagor  in  good  faith,  though  errone- 
ously, denied  his  liability.  But,  on  the  other  hand,  in  Ferris  v.  Ferris,  28 
Barb.  29,  where  the  party,  who  was  a  married  woman,  relied  upon  the  ab- 
sence of  her  husband  and  her  own  ignorance  as  the  reasons  for  the  default, 
and  as  excusing  it,  the  stipulation  was  nevertheless  enforced.  Bennett  v. 
Stevenson,  53  N.  Y.  508,  clearly  intimates  and  concedes  that  fraud  or  im- 
proper conduct  on  the  part  of  the  creditor  in  procuring  the  default  would 
operate  as  an  excuse,  and  be  a  sufTlcient  ground  for  a  court  of  equity  to 
interfere  and  restrain  an  enforcement  of  the  clause. 

(b)  In  Moore  v.  Sargent,  112  Ind.  ance    of    the    amount   due    upon    one 

484,   14  N.   E.  466,  it  was  held  that  note    after    its    maturity.       But    see 

wliore    the    agreement    was    absolute  Huston   v.   Fatka,  30  Ind.  App.  693, 

that  the  whole  amount  should  become  66  N.  E.  74. 

due  upon  failure  to  pay  one  note,  aiivl  (c)  Thus,  in  Adams  v.  Rutherford, 

nothing  was  said  of  any  option,  the  13  Oreg.  78,  8  Pac.  896,  the  creditor 

right   to    insist    upon    an    immediate  purposely   absented    herself    in    order 

.:;>aymcnt  was  not  lost  by  an  accept-  that  she  might  take  advantage  of  a 


727  CONCERNING    PENALTIES    AND    FORFEITURES.  §  440 

§  440.  Liquidated  Damages  Described  in  General. —  The 
fourth  instance  to  be  mentioned  of  a  stipulation  which  is 
not  a  penalty  within  the  scope  and  meaning  of  the  equi- 
table doctrine  is  that  for  "  liquidated  damages."  If  the 
stipulation  is  one  properly  for  liquidated  damages,  and 
not  for  a  penalty,  equity  will  not  interfere  with  its  en- 
forcement, but  if  the  case  was  one  coming  within  the  equi- 
table jurisdiction,  it  would  be  treated  as  binding,  and  car- 
ried into  effect  by  a  court  of  equity.*  In  general,  where 
the  contract  is  for  the  performance  or  non-performance 
of  some  act  other  than  the  mere  payment  of  money,  and 
there  is  no  certain  measure  of  the  injury  which  will  be 
sustained  from  a  violation  of  the  agreement,  the  parties 
may,  by  an  express  clause  inserted  for  that  purpose, 
fix  upon  a  sum  in  the  nature  of  liquidated  damages 
which  shall  be  payable  as  a  compensation  for  such  vio- 
lation.^ **     The   question   whether   a   sum   thus   stipulated 

1  Rolfe  V.  Peterson,  2  Brown  Pari.  C,  Tomlins's  ed.,  436 ;  Lowe  v.  Peers,  4 
Burr.  2225 ;  Astley  v.  Weldon,  2  Bos.  &  P.  3i6 ;  Jones  v.  Green,  3  Younge  &  J. 
298;  Woodward  v.  Gyles,  2  Vern.  119;  Sainter  v.  Ferguson,  1  Macn.  &  G.  286; 
Bagley  v.  Peddle,  16  N.  Y.  469,  69  Am.  Dec.  713;  Mott  v.  Mott,  11  Barb.  127; 
Dakin  v.  Williams,  17  Wend.  447,  22  Wend.  201;  Smith  v.  Coe,  33  N.  Y.  Sup. 
Ct.  480;  O'Donnell  v.  Rosenberg,  14  Abb.  Pr.,  N.  S.,  59;  Shute  v.  Hamilton, 
3  Daly,  462;  Wolfe  Creek,  etc.,  Co.  v.  Schultz,  71  Pa.  St.  180;  Streeper  v. 
Williams,  48  Pa.  St.  450;  Pierce  v.  Fuller,  8  Mass.  223,  5  Am.  Dec.  102; 
Gushing  V.  Drew,  97  Mass.  445;  Tingley  v.  Cutler,  7  Conn.  291;  Gammon  v. 
Howe,  14  Me.  250;  Peine  v.  Weber,  47  111.  41;  Low  v.  Nolte,  16  111.  478; 
Brown  v.  Maulsby,  17  Ind.  10;  Hamilton  v.  Overton,  6  Blackf.  206,  38  Am. 
Dec.  136;  Yenner  v.  Hammond,  36  Wis.  277. 

default  in  the  payment  of  interest.  dated  damages  are  laid  down  as  in 
The  debtor  made  an  attempt  to  pay,  the  paragraphs  cited.  In  Condon  v. 
but  did  not  make  a  technical  tender.  Kemper,  47  Kan.  126,  27  Pac.  829,  IJ 
It  was  held  that  the  creditor  could  L.  R.  A.  671,  §§  440-447  are  cited, 
not  enforce  the  payment  of  the  prin-  This  section  is  cited  with  approval 
cipal.  in  Illinois  Cent.  R.  R.  Co.  v.  South- 
See  post,  §§   826,  833.  ern  Seating  &  Cabinet  Co.,  104  Tenn. 

(a)  Cited  to  this  effect  in  Moore  568,  78  Am.  St.  Rep.  933,  58  S.  W. 
T,  Durnam,  63  N.  J.  Eq.  06,  51  Atl.  303,  50  L.  R.  A.  729.  See  also  Fasler 
449.  V.  Beard,  39  Minn.  32,  38  N.  W.  755. 

(b)  In  Keeble  v,  Keeble,  85  Ala.  The  controlling  consideration  seems 
552,  5  South.  149,  the  text,  §§  440-  to  be  that  it  would  be  difficult,  if  not 
446,  is  cited  and  the  rules  as  to  liqui-  impossible,  to  ascertain  the  damages 


§440 


EQUITY   JURISPRUDENCE. 


728 


to  be  paid  is  a  "  penalty  "  or  is  "  liquidated  damages  '* 
is  often  difficult  to  determine.  It  depends,  however,  upon 
a  construction  of  the  whole  instrument,  upon  the  real  in- 
tention of  the  parties  as  ascertained  from  all  the  language 
which  they  have  used,  from  the  nature  of  the  act  to  be 
performed,  or  not  to  be  performed,  from  the  consequences 
which  naturally  result  from  a  violation  of  the  contract, 
and  from  the  circumstances  generally  surrounding  the 
transaction.  It  has  been  repeatedly  held  that  the  words 
*'  penalty  "  or  *'  liquidated  "  damages,  if  actually  used 
in  the  instrument,  are  not  at  all  conclusive  as  to  the  char- 


actually  sustained.  Muse  v.  Swayne, 
70  Tenn.  (2  Lea)  251,  31  Am.  Rep. 
607;  Tobler  v.  Austin,  22  Tex.  Civ. 
App.  99,  53  S.  VV.  70G;  Studabaker 
V.  White,  31  Ind.  211,  99  Am.  Dec. 
628;  Schroeder  v.  Cal.  Yukon  Trad- 
ing Co.,  95  Fed.  296;  Peekskill,  S.  C. 
&  M.  R.  Co.  V.  Village  of  Peeki- 
kill,  47  N.  Y.  Supp.  305,  21  App. 
Div.  94  (affirmed  in  59  N.  E.  1128, 
165  N.  Y.  628)  ;  Willson  v.  JSLayor, 
etc.,  of  Baltimore,  83  Md.  203,  55 
Am.  St.  Rep.  339,  34  Atl.  774;  Man- 
Bur  &,  Tebbetts  Impl.  Co.  v.  Willet 
(Okla.),  61  Pac.  1066;  Brennan  v. 
Clark,  29  Neb.  385,  45  N.  W.  472; 
Nilson  V.  Town  of  Jonesboro,  57  Ark. 
168,  20  S.  W.  1093;  May  v.  Craw- 
ford, 150  Mo.  504,  51  S.  W.  093;  De 
Graff,  Vrieling  &  Co.  v.  Wickham, 
89  Iowa  720,  52  N.  W.  503;  Mcin- 
tosh V.  Johnson,  8  Utah  359,  31  Pas. 
450;  Pogue  v.  Kaweah  Power  &, 
Water  Co.  (Cal.),  72  Pac.  144.  In 
Ward  V.  H.  R.  B.  Co.,  125  N.  Y. 
230,  20  N.  E.  256,  the  rule  was  stated 
as  follows:  "We  may,  at  most,  sav 
that  where  they  have  stipulated  for  a 
payment  in  liquidation  of  damages 
which  are  in  their  nature  uncertain, 
and  unascertainabie  with  exactness, 
and  may  be  dcp(;iidcnt  upon  cxtrin- 
nin  consiclcrations  and  circumstances, 
and  tlie  amount  ia  not,  on  tiic  face  of 


the  contract,  out  of  all  proportion  to 
the  probable  loss,  it  will  be  treated 
as   liquidated   damages." 

"  Whether  a  contract  is  such  that 
'  from  the  nature  of  the  case '  it  would 
be  impracticable  or  extremely  diffi- 
cult to  fix  the  actual  damage  sus- 
tained by  a  breach  thereof  is  a  ques- 
tion of  fact,  which  must  be  deter- 
mined in  each  particular  case."  Pa- 
cific Factor  Co.  v.  Adler,  90  Cal.  110, 
25  Am.  St.  Rep.  102,  27  Pac.  36. 

"  Whether  the  sum  mentioned  bhall 
be  considered  as  a  penalty  or  as  liqui- 
dated damages  is  a  question  of  con- 
struction on  which  the  court  may  be 
aided  by  circumstances  extraneous  to 
the  writing.  The  subject-matter  ol 
the  contract,  the  intention  of  the 
parties,  as  well  as  other  facts  and 
circumstances,  may  be  inquired  into, 
although  the  words  are  to  be  taken 
as  proved  exclusively  by  the  writ- 
ing." Foley  v.  McKeegan,  4  Iowa 
(4  Clarke),  1,  66  Am.  Dec.  107.  See 
also  Wallis  Iron  Works  v.  Mon- 
mouth Park  Ass'n,  55  N.  J,  L.  132, 
39  Am.  St.  Rep.  626,  26  Atl.  14'\  19 
L.  R.  A.  456;  Sanford  v.  First  Nat. 
Bank,  94  Iowa,  680,  63  N.  W.  459; 
Taylor  v.  Times  Newspaper  Co.,  83 
Minn.  523,  85  Am.  St.  Rep.  473,  86 
N.  W.  760;  Muse  v.  Swayne,  70 
Tenn.   (2  Lea)  251,  31  Am.  Rep.  607; 


729  CONCERNING   PENALTIES    AND    FORFEITURES.  §  4-40 

acter  of  the  stipulation.  If  upon  the  whole  agreement  the 
court  can  see  that  the  sum  stipulated  to  be  paid  was  in- 
tended as  a  penalty,  the  designation  of  it  by  the  parties 
as  *'  liquidated  damages  "  will  not  prevent  this  construc- 
tion ;  if,  on  the  other  hand,  the  intent  is  plain  that  the  sum 
shall  be  ''  liquidated  damages/'  it  will  not  be  treated  as  a 
penalty  because  the  parties  have  called  it  by  that  name.  It 
is  well  settled,  however,  that  if  the  intent  is  at  all  doubt- 
ful, the  tendency  of  the  courts  is  in  favor  of  the  interpre- 
tation which  makes  the  sum  a  penalty.^  "^    The  mere  large- 

2Dimech  v.  Corlett,  12  Moore  P.  C.  C.  199;  Jones  v.  Green,  3  Younge  &  J. 
304;  Green  v.  Price,  13  Mees.  &  W.  701,  16  Mees.  &  W.  340;  Betts  v.  liurch,  4 
Hurl.  &  N.  511,  per  Bramwell,  B. ;  Chilliner  v.  Chilliner,  2  Yes.  528;  Coles  v. 
£ims,  5  De  Gex,  M.  &  G.  1;  Gushing  v.  Drew,  97  Mass.  445;  Shute  v.  Taylor, 
£  Met.  61;  Wallis  v.  Carpenter,  13  Allen,  19;  Lynde  v.  Thompson,  2  Allen, 
456;  Streeper  v.  Williams,  48  Pa.  St.  450;  Hatch  v.  Fogarty,  33  N.  Y.  Sup. 
Ct.  166;  Hahn  v.  Horstman,  12  Bush,  249;  Yenner  v.  Hammond,  3G  Wis.  277 
(the  word  "penalty"  used,  but  construed  to  be  liquidated  damages)  ;  While 
V.  Arlith,  1  Bond,  319;  Hamaker  v.  Schroers,  49  Mo.  406;  Shute  v.  Hamilton, 
2  Daly,  462;  Gillis  v.  Hall,  7  Phila.  422,  2  Brewst.  342,  See  also  the  cases 
cited  in  the  next  succeeding  note.  In  Gushing  v.  Drew,  97  Mass.  445,  the. 
rule  was  thus  stated  by  Chapman,  J. :  "  The  tendency  and  preference  of  the 
law  is  to  regard  a  sum  stated  to  be  payable  if  a  contract  is  not  fulfilled  as  a 
penalty,    and    not    as    liquidated    damages.      Yet    courts    endeavor    to    learn 

Emery  v.  Boyle,  200  Pa.  St.  249,  49  other  party  might  go  into  the  market 
Atl.  779;  City  of  New  Britain  v.  and  buy  at  the  expense  of  the  default- 
New  Britain  Tel.  Co.,  74  Conn.  326,  ing  party.  It  was  held  that  before  a 
50  Atl.  881;  Little  v.  Banks,  65  provision  in  the  contract  can  be  given 
N.  Y.  259 ;  Kilbourne  v.  Burt  &  Brabb  the  effect  of  a  stipulation  fixing  a 
Lumber  Co.,  23  Ky.  L.  Rep.  985,  64  measure  of  damages  either  greater 
S.  W.  631,  55  L.  R.  A.  275;  Keck  v.  or  less  than  the  law  would  give,  it 
Bieber,  148  Pa.  St.  645,  24  Atl.  170,  must  fairly  appear  from  its  language, 
33  Am.  St.  Eep.  846;  De  Graff,  Vriel-  construed  in  the  light  of  the  nature 
ing  &  Co.  V.  Wickham,  89  Iowa,  720,  of  the  contract  and  the  situation  of 
52  N.  W.  503;  Henneesy  v.  Metzger,  the  parties,  that  they  intended  it  to 
152  lU.  505,  38  N.  E.   1058,  43  Am,  have  that  effect. 

St.  Rep.  267.     "  If  the  sum  be  evi-  (c)  Language  of  the  Agreement  not 

dently  fixed  to  evade  a  statute  or  to  Conclusive. —  The    text    is    quoted    in 

cloak   oppression,   the   court  will   re-  Sherburne    v.    Herst,    121    Fed.    998. 

lieve   by   treating    it   as    a   penalty."  See   Foley   v.   McKeegan,   4   Iowa    (4 

Kilbourne  v.   Burt  &  Brabb   Lumber  Clarke),  1,  66  Am.  Dec.  107;  Weedon 

Co.,  23   Ky.  L.  Rep.  985,   64   S.   W.  v.    American    Bonding   &   Trust    Co, 

631,  55   L.  R.  A.  275.     In  the  case  128  N.  C.  69,  38  S.  E.  255. 
of   Williston   v.   Mathews,   55    Miim.  In  the  following  cases  the  stipula- 

422,    56    N.    W.    1112,    there    was    a  tions  were  held  to  be  for  liquidated 

Btipulation  that  in  case  of  breach  the  damages,    although    the    word    "  pen- 


§440 


EQUITY    JURISPRUDENCE. 


730 


ness  of  tlio  sum  fixed  upon  for  the  doing  or  not  doing  a 
particular  act  —  that  is,  the  fact  of  its  being  dispropor- 
tioned  in  amount  to  the  damage  which  results  therefrom 

from  the  subject-matter  of  the  contract,  the  nature  of  the  stipulations,  and 
the  surrounding  circumstances,  what  was  the  real  intent  of  the  parties,  and 
are  governed  by  such  intent."  In  Gillis  v.  Hall,  7  Phila.  422,  2  Brewst.  342, 
it  was  said  that  when  a  person  has  bound  himself  in  a  certain  sum  to  do  or 
not  to  do  a  certain  thing,  the  court  will  look  at  the  language  of  the  contract, 
the  intention  of  the  parties  as  gathered  from  all  its  provisions,  the  subject- 
matter  of  the  contract  and  its  surroundings,  the  ease  or  difficulty  of  measur- 
ing the  breach  in  damages,  and  the  sum  stipulated;  and  from  the  whole  decide 
whether  equity  and  good  conscience  require  that  said  sum  shall  be  treated  as 
liquidated  damages  or  only  as  a  penalty.  It  does  not  seem  possible  to  formu- 
late the  rule  in  any  more  comprehensive  and  accurate  a  maimer  than  this. 
In  White  v.  Arlith,  1  Bond,  319,  it  was  held  that  if  a  sum  stipulated  to  be 
paid  on  a  breach  is  termed  in  the  instrument  a  "  penalty,"  it  will  always  be 
treated  only  as  a  penalty;  but  if  it  is  termed  "liquidated  damages,"  it  may 
be  treated  as  a  penalty,  if  that  appears  to  be  the  intent.  This  attempted  dis- 
tinction between  the  effect  of  using  the  word  "  penalty,"  and  that  of  using  the 
words  "  liquidated  damages,"  is  not  only  unsupported  by  authority,  but  is 
directly  opposed  to  the  whole  current  of  authority,  English  and  American. 


alty  "  was  used :  Kunkle  v.  Wherry, 
189  Pa,  St.  198,  69  Am.  St.  Rep.  802, 
42  Atl.  112;  Muse  v.  Swayne,  70  Tenn. 
(2  Lea)  251,  31  Am.  Rep.  607; 
Duffy  V.  Shockey,  11  Ind.  70,  71  Am, 
Dec.  348;  Pastor  v.  Solomon,  54 
N.  i'.  Supp.  575,  25  Misc.  Rep.  322; 
Hardee  v.  Howard,  33  Ga.  533,  83 
Am.  Dec,  176;  Robinson  v.  Centen- 
ary Fund  &  Preachers  Aid  Soc,  68 
N.  J.  L,  723,  54  Atl.  416;  In  re  White, 
«4  L.  T,  594,  50  Wkly.  Rep.  81. 

In  the  following  cases  the  stipula- 
tions were  held  to  be  for  liquidated 
damages,  although  the  word  *'  fo-*- 
feiture  "  or  "  forfeit  "  was  used:  Mc- 
Curry  v.  Giljson,  108  Ala.  451,  54 
Am.  St.  Rep.  177,  18  South.  806; 
Sanford  v.  First  Nat.  Bank,  94  Iowa, 
680,  03  N.  W.  459;  Goldman  v.  Gold- 
man, 51  La.  Ann.  701,  25  South.  555; 
Pendleton  v.  Electric  Light  Co. 
(N,  C),  27  S.  E.  1003;  Pressed 
Steel  Car  Co.  v.  Enstern  R'y  Co.,  121 
Fed.  009;  Dohbs  v.  Turner  (Tex.  Civ. 
App.),  70  S.  W.  4r)S;  Eakin  v.  Scott, 
70    Tex.    442,    7    S.    W.    777;    Hardle 


Tynes  Foundry  &  Mach.  Co.  v.  Glen 
Allen  Oil  Mill  (Miss.),  30  South. 
262. 

In  the  following  cases  provisions 
were  held  penalties,  although  called 
liquidated  damages  by  the  parties: 
Condon  v.  Kemper,  47  Kan.  120,  27 
Pac.  829,  13  L.  R.  A.  671;  Gay  Mfg. 
Co.  V.  Camp,  65  Fed.  794,  13  C.  C.  A. 
137,  25  U.  S.  App.  134;  Wilhelm  v. 
Eaves,  21  Greg.  194,  27  Pac.  1053, 
14  L.  R.  A.  297. 

In  Wright  v.  Dobio,  3  Tex.  Civ. 
App.  194,  22  S.  W.  66,  the  word 
"  forfeit "  was  used,  and  the  court 
held  that  it  was  for  the  jury  to  say 
whether  the  intent  was  for  a  penalty 
or  for  liquidated  damages.  In  Van 
Buren  v.  Degges,  52  U.  S.  (11  How.) 
461,  the  court  said:  "The  term 
'  forfeiture'  imports  a  penalty;  it  has 
no  necessary  or  natural  connection 
with  the  measure  or  degree  of  injury 
which  may  result  from  a  breach  of 
contract,  or  from  an  imperfect  per- 
formance. It  implies  an  abaohite  in- 
fliction, regardless  of  the  nature  and 


731 


CONCERNING   PENALTIES    AND    FORFEITURES. 


441 


—  will  not  of  itself  be  a  sufficient  reason  for  holding  it 
to  be  a  penalty.^ " 

§  441.  Rules  Determining  Liquidated  Damages  and  Penalties. 

—  While  it  is  impossible  to  formulate  one  universal  cri- 

3Astley  V.  Weldon,  2  Bos,  &  P.  351;  Chilliner  v.  Chilliuer,  2  Ves.  528;  Eoy 
V.  Duke  of  Beaufort,  2  Atk.  190;  Logan  v.  Wienliolt,  1  Clark  &  F.  611;  Cle- 
ment V.  Cash,  21  N,  Y.  253;  Shiell  v.  McNitt,  9  Paige,  101;  Dwinel  v.  Brown, 


extent  of  the  causes  by  which  it  is 
superinduced.  Unless,  therefore,  it 
shall  have  been  expressly  adopted  and 
declared  by  the  parties  to  be  a  meas- 
ure of  injury  or  compensation,  it  is 
never  taken  as  such  by  courts  of  jus- 
tice, who  leave  it  to  be  enforced  where 
"this  can  be  done  in  its  real  character, 
viz.:  that  of  a  penalty."  In  Smith 
T.  Brown,  164  Mass.  584,  42  N.  E. 
101,  there  was  an  agreement  not  to 
engage  in  business  "  under  a  penalty 
of  one  thousand  dollars."  The  court 
said :  "  Even  if  the  use  of  that  word 
is  not  conclusive,  it  has  been  declared 
by  this  court  and  by  others  that  very 
strong  evidence  would  be  required  to 
authorize  them  to  say  that  the  parties' 
own  words  do  not  express  their  in- 
tention in  this  respect.  The  inten- 
tion to  liquidate  damages  may  not 
prevail  in  all  cases,  but,  if  the  intent 
expressed  is  to  impose  a  penalty,  the 
court  cannot  give  the  words  a  larger 
scope."  In  Kilbourne  v.  Burt  &  Brabb 
Lumber  Co.,  23  Ky.  L.  Rep,  985,  64 
S.  W.  631,  55  L.  R.  A.  275,  the  court 
said :  "  Where  the  word  '  penalty  ' 
is  used,  it  is  generally  conclusive 
against  its  being  held  liquidated 
damages,"  In  Iroquois  Furnace  Co,  v. 
Wilkin  Mfg.  Co.,  181  111.  582,  54  N.  E. 
987,  the  court  said :  "  The  word  '  pen- 
alty '  prima  facie  excludes  the  no- 
tion of  stipulated  damages,  although 
the  use  of  either  the  word  '  penalty ' 
or  the  words  *  liquidated  damages  ' 
is  not  conclusive,"  In  \\  illiams  v. 
Vance,  9  S.  C.  (9  Rich.)  344,  30  Am. 
Rep.  26,  the  court  said :  "  When  the 
parties  declare  that  the  sum  or  rate 


fixed  shall  be  deemed  liquidated  dam- 
ages, and  the  case  is  one  in  which 
they  are  at  liberty  so  to  declare,  such 
declaration  must  stand  unless  incon- 
sistent with  other  parts  of  the  same 
instrument  or  unreasonable  in  itself. 
In  inquiring  whether  it  is  reasonable 
it  is  not  necessary  to  ask  whether  it 
is  wise  or  considerate,  but  whether  it 
is  in  conflict  with  the  principles  ai^d 
practices  that  govern  transactions  of 
a  like  nature." 

Where  Meaning  is  Doubtful,  the 
stipulation  will  be  construed  as  a 
penalty.  Heatwole  v.  Gorrell,  35 
Kan.  692,  12  Pac.  135;  Wallis  Iron 
Works  V.  Monmouth  Park  Ass'n,  55 
N.  J.  L.  132,  39  Am.  St.  Rep.  02G, 
26  Atl.  140,  19  L.  R.  A.  450;  Foley 
V.  McKeegan,  4  Iowa  (4  Clarke),  1, 
66  Am.  Dec.  107;  Johnson  v.  Cook, 
24  Wash.  274,  04  Pac.  729;  Amanda 
Conso).  G.  M.  Co,  v.  People's  M.  & 
M.  Co.,  28  Colo,  251,  64  Pac.  218; 
Day  Bros.  Lumber  Co.  v.  Ison,  23 
Ky.  L.  Rep.  80,  62  S.  W.  516;  Baird 
V.  Tolliver,  25  Tenn,  (6  Humph,) 
186,  44  Am.  Dec.  298;  Wilson  v. 
Mayor,  etc.,  of  Baltimore,  83  Md. 
203,  55  Am.  St.  Rep.  339,  34  Atl. 
774;  Brennan  v,  Clark,  29  Neb,  385, 
45  N,  W.  472;  Iroquois  Furnace  Co. 
V.  Wilkin  Mfg.  Co.,  181  111.  582,  54 
N,  E,  987;  Wilhelm  v.  Eaves,  21 
Oreg.  194,  27  Pac,  1053,  14  L.  R.  A. 
297 ;  Gillihan  v.  Rollins,  41  Neb.  540, 
59  N.  W.  893. 

(d)  Disproportion  of  the  Sum  Fixed 
not  Conclusive. —  The  text  is  sup- 
ported in  the  recent  case  of  Sua 
Printing   and   Pub.   Aes'n   v.   Moore, 


§441 


EQUITY    JURISPRUDENCE. 


732" 


terion  by  wliich  the  question  of  penalty  or  liquidated  dam- 
ages can  be  determined  in  every  instance,  certain  parti-'-ular 
rules  have  been  well  settled  by  the  decisions,  which  apply 
to  many  important  and  customary  forms  and  kinds  of 
agreements,  although  there  are,  of  course,  numerous  cases 

54  Me.  468;  Morse  v.  Rathburn,  42  Mo.  594,  97  Am.  Dec.  359;  Gower  v.  Salt- 
marsh,  11  Mo.  27;  Peine  v.  Weber,  47  III.  41;  Gamble  v.  Linder,  76  111.  137; 
Williams  v.  Green,  14  Ark.  313;  Hodges  v.  King,  7  Met.  583.  Still  the  amount, 
of  the  sum  may  always  be  taken  into  consideration  as  an  aid  to  the  court 
in  determining  the  intention  of  the  parties;  and  if  it  be  altogether  excessive, 
this  may  turn  the  scale  in  favor  of  declaring  it  intended  as  a  penalty:  Barry 
V.  Wisdom,  5  Ohio  St.  241;  Perkins  v.  Lyman,  11  Mass.  76,  6  Am.  Dec.  158; 
Lynde  v.  Thompson,  2  Allen,  456,  459;  Hodgson  v.  King,  7  Met.  583;  Streeper 
V.  Williams,  48  Pa.  St.  450;  Curry  v.  Larer,  7  Pa.  St.  470,  49  Am.  Dec.  486; 
Cohvell  V.  Lawrence,  38  Barb.  643,  38  N.  Y.  71. 


183  U.  S.  642,  22  Sup.  Ct.  240.  The 
court  reviewed  a  long  list  of  authori- 
ties, expressed  disapproval  of  the 
cases  of  Chicago  House- Wrecking  Co. 
V.  U.  S.,  166  Fed.  385,  45  C.  C.  A. 
343,  53  L,  R.  A.  122,  and  Gay  Mfg. 
Co.  V.  Camp,  65  Fed.  794,  25  U.  S. 
App.  134,  13  C.  C.  A.  137,  68  Fed. 
67,  25  U.  S.  App.  376,  15  C.  C.  A. 
226,  and  announced  its  conclusion  as 
follows :  "  It  may,  we  think,  fair Jy 
be  stated  that  when  a  claimed  dispro- 
portion has  been  asserted  in  actions 
at  law,  it  has  usually  been  an  ex- 
cessive disproportion  between  the 
stipulated  sum  and  the  possible  dam- 
ages resulting  from  a  trivial  breach 
apparent  on  the  face  of  the  contract, 
and  the  question  of  disproportion  has 
been  simply  an  element  entering  into 
the  consideration  of  the  question  of 
what  was  the  intent  of  the  partie?, 
whether  bona  fide  to  fix  the  damages, 
or  to  stipulate  the  payment  of  au 
arbitrary  sum  as  a  penalty,  by  way 
of  security."  See  also  Taylor  v.  Timea 
Newspaper  Co.,  83  Minn.  523,  85  Am. 
St.  Rep.  473,  86  N.  W.  760.  And  see 
Keoble  v.  Keeble,  85  Ala.  552,  5 
South.  149.  In  this  case  it  was  ar- 
jfued  that  inasmuch  as  it  was  pos- 
olble  for  a  breach  to  occur   with   no 


actual  damages,  other  than  nominal, 
the  amoimt  agreed  upon  should  be 
construed  as  a  penalty.  In  answer,, 
the  court  pointed  out  that  such  is 
the  character  of  most  agreements, 
and  held  that  it  could  not  enter  in<^o 
an  investigation  of  the  quantum  of 
damages. 

Where  the  amount  stipulated  for 
is  unreasonable  it  is  evidence  that 
the  parties  did  not  intend  to  provide 
for  compensatory  damages,  and  the 
provision  will  be  held  a  penalty. 
Condon  v.  Kemper,  47  Kan.  126,  27 
Pac.  829,  13  L.  R.  A.  671.  See  alsa 
Iroquois  Furnace  Co,  v.  Wilkin  Mfg. 
Co.,  181  111.  582,  54  N.  E.  987; 
Northwest  Fixture  Co.  v.  Kilbourne 
&  Clark  Co.  (C.  C.  A.),  128  Fed. 
256.  "Although  a  sum  be  named  as 
'  liquidated  damages '  the  courts  will 
not  so  treat  it,  unless  it  bear  such 
proportion  to  the  actual  damages 
that  it  may  reasonably  be  presumed 
to  have  been  arrived  at  upon  a  fair 
estimation  by  the  parties  of  the  com- 
pensation to  be  paid  for  the  pros- 
pective loss.  If  the  supposed  stipu- 
lation greatly  exceed  the  actual  los.-i, 
—  if  there  be  no  appro.ximation  be- 
tween them,  and  this  be  made  to  ap- 
pear by  the  evidence, —  then,  it  seema 


733 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§441 


which  cannot  easily  be  brought  within  the  operation  of 
either  of  them.  The  following  are  the  rules  which  have 
thus  been  established  by  judicial  authority. 

First.  AYherever  the  payment  of  a  smaller  sum  is  secured 
by  a  larger,  the  larger  sum  thus  contracted  for  can  never 
be  treated  as  liquidated  damages,  but  must  always  be  con- 
sidered as  a  penalty.^  * 

1  Aylett  V.  Dodd,  2  Atk.  239;  Astley  v.  Weldon,  2  Bos.  &  P.  350-354;  Lamp- 
man  V.  Cochran,  16  N.  Y.  275;  Clement  v.  Cash,  21  N.  Y.  253,  260;  Bagley  v. 
Peddie,  16  N.  Y.  469,  471,  69  Am.  Dec.  713;  Dakin  v.  Williams,  17  Wend. 
447,  22  Wend.  401;  Tiernan  v.  Hamman,  16  111.  400.  The  stipulation  creates 
a  penalty  within  this  rule,  whatever  be  the  form  of  the  contract  secured,  if  it 
be  in  effect  one  for  the  payment  of  money;  that  is,  where  it  may  not  in  ex- 
press terms  provide  for  the  payment  of  money,  but  its  performance  results 
in  such  payment.  As  examples:  In  an  agreement  to  stay  the  enforcement 
of  a  decree  of  mortgage  foreclosure  for  a  specified  time,  a  stipulation  to  pay 
.3  fixed  sum  upon  default  in  performing  the  decree  was  held  to  be  a  penalty: 
Kulm  V.  Meyers,  37   Iowa,  351;   and  in  an  agreement  to  pay  the  plaintiff's 


to  us,  and  then  only,  should  the  ac- 
tual damages  be  the  measure  of  re- 
covery;" Collier  v.  Betterton,  87  Tex. 
442,  29  S.  W.  468.  Accordingly,  in 
Wilcox  v.  Walker  (Tex.  Civ.  App.), 
43  S.  W.  579,  where  there  was  a 
stipulation  to  keep  property  insured 
or  pay  a  certain  amount  in  case  of 
fire,  it  was  held  that  the  defendant 
might  show  that  the  property  was  of 
no  value.  In  Weedon  v.  American 
Bonding  &  Trust  Co.,  128  N.  C.  69,  38 
S.  E.  255,  damages  for  delay  in  com- 
pleting a  building  were  fixed  at  $10 
per  day.  The  rental  value  of  the 
building  was  $30  per  month.  It  was 
held  that  the  sum  was  a  penalty,  the 
court  saying  (quoting  from  Ward  v. 
Building  Co.,  125  N.  Y.  230,  26  N.  E. 
256 )  that  "  when  the  sum  specified  in 
the  contract  as  liquidated  damages  is 
disproportionate  to  the  presumed  or 
probable  damage  or  to  a  readily  as- 
certainable loss,  the  courts  will  treat 
it  as  a  penalty,  and  will  relieve  on 
the  principle  that  the  precise  sum 
was  not  of  the  essence  of  the  con- 
tract, but  was  in  the  nature  of  se- 


curity for  performance."  A  similar 
result  on  similar  facts  was  reach'^d 
in  Cochran  v.  People's  R'y  Co.,  113 
Mo.  359,  21  S.  W.  6;  Jennings  v. 
Wilier  (Tex.  Civ.  App.),  32  S.  W. 
24.  In  J.  G.  Wagner  Co.  v.  Cawker, 
112  Wis.  532,  88  N.  W.  532  the 
question  arose  over  a  stipulation  for 
liquidated  damages  for  delay.  Tire 
court  intimated  that  if  the  amount, 
were  greatly  disproportionate  to  ttie 
actual  damage  it  should  be  consid- 
ered a  penalty.  Where  the  amount  is 
unreasonable  and  the  enforcement 
would  work  a  hardship,  the  stipula- 
tion will  be  held  to  be  a  penalty; 
Dennis  v.  Cummins,  3  Johns.  Cas.  297, 
2  Am.  Dec.  160.  In  Gillihan  v.  Rol- 
lins, 41  Neb.  540,  59  N.  W.  893,  the 
court  held  that  stipulations  will  be 
held  to  be  for  liquidated  damages  only 
"  when  to  do  so  will  no  more  than 
compensate  for  his  loss." 

(a)  See  Chicago  House-Wrecking 
Co.  V.  U.  S.,  106  Fed.  385,  45  O. 
C.  A.  343,  53  L.  R.  A.  122;  Bren- 
nan  v.  Clark,  29  Neb.  385,  45  N.  W. 
472;     Kilbourne    v.    Burt    &    Brabb 


§  442  EQUITY   JURISPRUDENCE.  734 

§  442.  Second.  Where  an  agreement  is  for  tlie  perform- 
ance or  non-performance  of  only  one  act,  and  there  is  nO" 
adequate  means  of  ascertaining  the  precise  damage  which 
may  result  from  a  violation,  the  parties  may,  if  they  please, 
by  a  separate  clause  of  the  contract,  fix  upon  the  amount 

debts,  and  to  save  him  harmless  from  any  suit  which  might  be  brought  upon 
such  demands,  a  stipulation  to  pay  a  fixed  sum  upon  default  was  held  to  be 
a  penalty:  Morris  v.  McCoy,  7  Nev.  399.  The  stipulation  is  hfld  to  be  a 
penalty,  not  only  when  it  thus  certainly  provides  for  the  payment  of  a  larger 
siun  upon  a  default  in  paying  a  smaller  amount,  but  also  where  it  may  pos- 
sibly lead  to  such  a  result:  Spear  v.  Smith,  1  Denio,  465;  Hoag  v.  McGinnis, 
22  Wend.  163;  Niver  v.  Rossman,  18  Barb,  50;  Gregg  v.  Crosby,  18  Johns. 
219,  226;  Curry  v.  Larer,  7  Pa.  St.  470,  49  Am.  Dec.  486.  In  Spear  v.  Smith, 
1  Denio,  465,  there  was  an  agreement  to  comply  with  the  decision  of  arbi- 
trators to  whom  a  controversy  had  been  submitted,  or  else  to  pay  one  hun- 
dred dollars,  and  the  latter  sum  was  held  to  be  a  penalty,  because  the  award 
might  be  for  the  payment  of  a  sum  of  money,  as  in  fact  it  was.  It  is  partly 
for  this  reason  that  where  a  contract  contains  several  stipulations,  some  for 
the  payment  of  money,  and  others  for  the  doing  or  not  doing  of  specified  acts, 
an  additional  provision  binding  a  party  to  pay  a  fixed  sum  in  case  of  his  de- 
fault in  any  of  these  matters  is  necessarily  a  penalty:  Whitfield  v.  Levy,  35 
N.  J.  L.  149;  Shiell  v.  McNitt,  9  Paige,  101,  106;  Niver  v.  Rossman,  18  Barb. 
50.  In  Whitfield  v.  Levy,  35  N.  J.  L.  149,  the  purchaser  of  a  grocery  promised 
to  pay  one  thousand  three  hundred  dollars  as  the  price,  and  the  seller  prom- 
ised not  to  engage  in  the  same  business  for  ten  years,  and  the  contract  added 

Lumber  Co.,  23  Ky.  L.  Rep.  985,  64  the  rents  and  royalties  due  on  the 
S.  W.  631,  55  L.  K.  A.  275;  Walsh  first  day  of  any  month  shall  be  paid 
V.  Curtis,  73  Minn.  254,  76  N.  W.  on  or  before  the  fifteenth  day  of 
52.  A  stipulation  in  a  mortgage  that  that  month,  it  will,  in  consideration 
if  default  is  made  in  the  payment  thereof,  grant  a  discount  of  fifty  per 
of  interest  or  principal  at  the  ^im^s  cent."  This  was  held  to  provide  for 
designated,  the  mortgagors  will  pay  a  penalty.  In  Gay  Mfg.  Co.  v.  Camp, 
interest  on  the  principal  at  the  rate  65  Fed.  794,  13  C.  C.  A.  137,  25  U.  S, 
of  twelve  per  cent  per  annum  from  App.  134,  there  was  an  agreement  for 
the  date  of  the  note  until  payment  stipulated  damages  in  case  of  a  de- 
is  made,  the  rate  of  interest  in  the  fault  by  a  lessee  in  the  payment  of 
absence  of  such  default  being  only  rent.  The  court  held  the  provision  to 
seven  per  cent  per  annum,  is  a  stipu-  be  a  penalty.  In  Mason  v.  Callender,  2 
lation  for  a  penalty,  and  not  enforce-  Minn.  350,  72  Am.  Dec.  102,  a  promis- 
ablc  in  equity:  Krutz  v.  Robbins,  12  sory  note  which  provided  for  a  greater 
Wasli.  7,  40  Pac.  415,  50  Am.  St.  rate  of  interest  after  maturity  than 
Rep.  871,  28  L.  R.  A.  670,  and  cases  before  was  before  the  court.  It  was 
cited;  Richardson  v.  Campbell,  3l  held  that  after  maturity  only  dam- 
Neb.  181,  51  N.  W.  753,  33  Am.  St.  ages  could  be  recovered,  and  that  the 
Rep.  033.  In  Goodj'car  Shoe  Mach.  provision  had  the  effect  of  making  a 
Co.  v.  Selz,  Schwab  &.  Co.,  157  111.  180,  larger  sum  due  upon  failure  to  pay 
41  N.  E.  625,  a  lessor  agreed  that  "  if  a  smaller.     Hence  the  provision  was 


735  CONCERNING    PEN.U.TIES    AND    FORFEITURES.  §  442 

of  compensation  payable  by  the  defaulting  party  in  ease 
of  a  breach;  and  a  stipulation  inserted  for  such  purpose 
will  be  treated  as  one  for  **  liquidated  damages,"  unless 
the  intent  be  clear  that  it  was  designed  to  be  only  a 
penalty.^  * 

that  the  parties  "  bound  themselves  to  each  other  under  the  penalty  of  five 
hundred  dollars,  to  be  paid  by  him  who  should  fail  to  carry  out  this  agree- 
ment." The  five  hundred  dollars  was  held  to  be  a  penalty  as  to  both  the 
parties,  since  it  was  necessarily  so  with  respect  to  the  purchaser's  covenant 
to  pay  the  price.  Although  this  rule  with  respect  to  penalties  intended  as  a 
security  for  payment  of  money  is  generally  adopted  and  enforced  by  courts 
of  law  as  well  by  those  of  equity,  yet  it  seems  that  a  contract  in  express  terms 
to  pay  a  larger  sum,  exceeding  the  interest,  as  compensation  for  delay  in 
paying  a  smaller  amount,  may  be  valid  and  operative  at  law,  when  not  con- 
trary to  the  statutes  against  usury:  See  Davis  v.  Hendrie,  1  Mont.  Ter.  499; 
Hardee  v.  Howard,  33  Ga.  533,  S3  Am.  Dec.  176;  Sutton  v.  Howard,  33  Ga. 
536;  Goldworthy  v.  Strutt,  1  Ex.  659,  665;  Lynde  v.  Thompson,  2  Allen,  456^ 
459.     Every  such  contract  would,  however,  be  relieved  against  in  equity. 

1  The  leading  case  under  this  rule  is  Rolfe  v.  Peterson,  2  Brown  Pari.  C, 
Tomlins's  ed.,  436,  where  a  lessee  covenanted  not  to  plow  up  any  of  the  ancient 
meadow  or  pasture  land,  and  if  he  did  he  was  to  pay  an  additional  rent  of 
five  pounds  per  acre.  This  additional  rent  was  held  by  the  house  of  lords  to 
be  liquidated  damages.     The  same  has  been  held  in  other  cases  with  respect 

held  to  be  a  penalty.  See  also  Gower  (a)  Provisions  for  damages  for  the 
V.  Carter,  3  Iowa  (3  Clarke),  244,  breach  of  the  following  agreements 
66  Am.  Dec.  71.  But  see  Close  v.  have  been  held  to  be  liquidated  dam- 
Riddle,  40  Oreg.  592,  .67  Pac.  932,  ages:  To  provide  a  theater  for 
91  Am.  St.  Rep.  580,  and  note.  plaintifi:"'s  theatrical  company:  Maw- 
In  Morrill  v.  Weeks,  70  N.  H.  178,  son  v.  Leavitt,  37  N.  Y.  Supp.  1138,. 
46  Atl.  32,  the  court  said:  "  The  in-  16  Misc.  Rep.  289.  To  build  on  land 
tention  of  the  parties  is  generally  the  conveyed  to  defendant:  Everett  Land 
test  to  determine  whether  a  promise  Co.  v.  Maney,  16  Wash.  552,  48  Pac. 
to  pay  a  fixed  sum  of  money  for  any  243.  To  provide  quick  transit  for 
default  in  the  performance  of  a  con-  the  inhabitants  of  a  village:  Peeks- 
tract  is  in  the  nature  of  a  penalty  kill,  S.  C.  &  M.  R.  Co.  v.  Village 
or  of  liquidated  damages.  But  a  of  Peekskill,  47  N.  Y.  Supp.  305,  21 
promise  to  pay  a  large  sum  of  money  App.  Div.  94  (affirming  59  N.  F. 
in  the  event  of  a  default  in  the  pay-  1128,  165  N.  Y.  Q28).  By  a  telephone 
ment  of  a  much  smaller  sum  is  an  ex-  company,  not  to  cease  competition: 
ception  to  this  rule;  for  the  law  City  of  New  Britain  v.  New  Britain 
makes  interest  the  measure  of  dam-  Tel.  Co.,  74  Conn.  326,  50  Atl.  88]. 
ages  for  failure  to  pay  money  when  To  submit  a  controversy  to  a  judge 
it  is  due,  and  will  not  permit  parties  without  service  of  summons,  etc.: 
to  avoid  the  usury  laws  in  this  way.  Pendleton  v.  Electric  Light  Co. 
Such  a  promise  will  be  treated  as  a  (N.  C),  27  S.  E.  1003.  Not  to  sell 
penalty,  and  not  as  liquidated  dam-  a  patent  medicine  at  less  than  the 
ages."  regular  price:     Garst  v.  Harris,  177 


§443 


EQUITY   JURISPRUDENCE. 


736 


§  443.    Third.   Where  an  agreement  contains  provisions 
for  the  performance  or  non-performance  of  several  acts  of 

to  similar  covenants  by  lessees:  Woodward  v.  Gyles,  2  Vern.  119;  Jones  v. 
Green,  3  Younge  &  J.  298.  This  rule  has  been  applied  in  many  cases,  where  a 
party,  either  in  connection  with  a  sale  of  his  stock  in  trade  and  good-will,  or 
imder  other  circumstances,  covenants  that  he  will  not  carry  on  his  trade  or 
business  within  certain  limits,  and  adds  a  clause  making  himself  liable  to  pay 
a   specified  sum  upon  any  violation  of  the  covenant;   such  sum  is  liquidated 


Mass.  72,  58  N.  E.  174.  To  keep  an 
account  and  pay  a  certain  percentage 
for  the  rent  of  machines,  the  breach 
being  the  failure  to  keep  the  accovmt: 
Standard  Button  Fastening  Co.  v. 
Breed,  163  Mass.  10,  39  N.  E.  346. 
Not  to  publish  a  libel  on  plaintiff: 
Emery  v.  Boyle,  200  Pa.  St.  249,  49 
Atl.  779.  To  employ  plaintiff  and  pay 
him  a  certain  percentage,  the  breacii 
being  a  discharge:  Glynn  v.  Mora'i, 
174  Mass.  233,  54  N.  E.  535.  To 
work  for  one  party:  Fisher  v. 
Walsh  (Wis.),  78  N.  W.  437.  A 
contract  for  services  stipulating  that 
if  the  employee  shall  leave  the  ser- 
vice without  giving  two  weeks'  pre- 
vious notice  of  his  intention  to  do 
so,  he  shall  forfeit  a  specified  sum, 
which  may  be  deducted  from  the 
wages  due  him,  is  valid,  especially 
if  the  circumstances  and  nature  of 
the  employment  are  such  that  it  will 
be  diflicult  to  calculate  with  any  cer- 
tainty the  actual  loss  resulting  to 
the  employer  from  the  abandonment 
of  the  employment  without  previous 
notice:  Tennessee  Mfg.  Co.  v.  James, 
91  Tenn.  154,  18  S.  W.  2G2,  30  Am. 
St.  Rep.  865,  15  L.  R.  A.  211.  But 
see  Seiirimpf  v.  Tennessee  Mfg.  Co., 
86  Tenn.  219,  6  S.  W.  131,  6  Am.  St. 
Rep.  832.  In  Missouri-Edison  Elect. 
Co.  v.  M.  J.  Steinberg  Hat  &  Fur  Co., 
04  Mo.  App.  543,  68  S.  W.  383,  plain- 
tiff agreed  to  give  defendant  a  dis- 
count if  defendant  should  use  plain- 
tiff's  power  for  a  year.  DcfciKlaiit 
hrokf  tlio  con(,ra(;t,  and  j)l:i  iril  ill'  sued 
Ui  recover  the  uiiiouut  of  the  discount. 


It  was  held  that  plaintiff  was  entitled 
to  this  relief.  In  Knox  Rock-Blasting 
Co.  V.  Grafton  Stone  Co.,  60  Ohio  St. 
361,  60  N.  E.  563,  it  was  agreed  that 
if  defendant  should  continue  to  use  a 
patent  after  the  termination  of  his  li- 
cense, without  obtaining  a  new  on=!, 
he  should  pay  double  the  former  fees 
for  the  time  of  such  user.  This 
was  held  to  be  a  stipulation  for 
liquidated  damages.  In  Keeble  v, 
Keeble,  85  Ala.  552,  5  South.  149,  it 
was  held  that  a  stipulation  by  a  busi- 
ness manager  to  wholly  abstain  from 
the  use  of  intoxicating  liquors  was 
for  liquidated  damages.  Section  442, 
note  1,  of  this  work  was  cited  as  au- 
thority. In  the  following  cases  the 
breaches  of  the  agreements  were  held 
to  be  such  that  damages  were  easily 
ascertainable,  and  therefore  the  stipu- 
lations were  held  to  be  penalties: 
Agreement  between  creditors  to  grant 
an  extension  and  not  to  purchase 
stock  of  the  debtor:  Hill  v.  Werc- 
heimer-Swarts  Shoe  Co.,  150  Mo.  483, 
51  S.  W.  702.  Agreement  to  pay  a 
certain  sum  if  a  lighter  hired  should 
be  lost:  Wilmington  Transp.  Co.  V. 
O'Neil,  98  Cal.  1,  32  Pac.  795. 
For  miscellaneous  examples,  see  Carey 
V.  Mackey,  82  Me.  516,  20  Atl. 
84,  17  Am.  St.  Rep.  500,  9  L.  R,  A. 
113;  Menges  v.  Milton  Piano  Co. 
(Mo.),  70  S.  W.  250;  Deuninck  v. 
West  Gallatin  Irr.  Co.,  28  Mont.  255, 
72  Pac.  618;  Ca;sar  v.  Rubinson,  174 
N.  Y.  492,  67  N.  E.  58;  Stony  Creek 
I.uiuIkm-  Co.  v.  Fields  (Va.).  45  S.  E. 
797.  Where  it  appears  that  the  amount 


737 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§443 


different  degrees  of  importance,  and  then  a  certain  sum 
is  stipulated  to  be  paid  upon  a  violation  of  any  or  of  all 

damages :»>  Green  v.  Price,  13  Mees.  &  W.  695,  16  Mees.  &  W.  354;  Atkina 
V.  Kinnier,  4  Ex.  770;  llawlinson  v.  Clarke,  14  Mees.  &  W.  187;  Galcsworlhy 
V.  Strutt,  1  Ex.  659;  Streetcr  v.  Rush,  25  Cal.  67;  Gushing  v.  Drew,  97  Mass. 
445.  In  the  leading  case  of  this  class  (Green  v.  Price,  13  Mees.  &  W.  695) 
defendant  had  covenanted  not  to  carry  on  the  business  of  a  hair-dresser  or 
perfumer  within  sixty  miles  of  London,  and  bound  himself  in  the  sum  of  five 
thousand  pounds  in  case  of  a  violation.  Having  violated  the  contract,  he  wa9 
held  liable  in  that  sum,  whether  it  did  or  did  not  exceed  the  actual  damage 
sustained  by  the  plaintiff.  In  Gushing  v.  Drew,  97  Mass.  445,  the  plaintiff 
had  sold  his  business  as  an  expressman  to  the  defendant  for  six  hundred  dol- 
lars, and  agreed  not  to  carry  on  the  same  business  within  specified  limits. 


«tipulated  for  is  to  be  in  addition  to 
actual  damages,  it  will  be  construe! 
to  be  a  penalty.  Meyer  v.  Estes,  164 
Mass.  457,  41  N.  E.  683,  32  L.  R.  A. 
283;  Foote  &  Davies  Co.  v.  Maloney, 
115  Ga.  985,  42  S.  E.  413. 

(i»)  Covenant  not  to  Carry  on  a 
Business. —  See  McCurry  v.  Gibson, 
108  Ala.  451,  54  Am.  St.  Rep.  177, 
18  South.  806;  Franz  v.  Bieler,  126 
€al.  176,  56  Pac.  249,  58  Pac.  466; 
Potter  V.  Ahrens,  110  Cal.  674,  43 
Pac.  388;  California  Steam  Nav.  Co. 
V.  Wright,  6  Cal.  258,  65  Am.  Dec. 
511;  Duffy  v.  Shockey,  11  Ind.  70, 
71  Am.  Dec.  348;  Miller  v.  Elliott, 
1  Ind.  (1  Cart.)  484,  50  Am.  Dec. 
475;  Studabaker  v.  White,  31  Ind. 
211,  99  Am.  Dec.  628;  Goldman  v. 
Goldman,  51  La.  Ann.  761,  25  South. 
761;  Holbrook  v.  Tobey,  66  Me.  419, 
22  Am.  Rep.  581;  Dunlop  v.  Gregory, 
10  N.  Y.  (6  Seld.)  241,  61  Am.  Dec. 
746;  Breck  v.  Ringler,  59  Hun,  623, 
13  N.  Y.  Supp.  501;  Kelso  v.  Reid, 
145  Pa.  St.  696,  23  Atl.  323,  27  Am. 
St.  Rep.  716;  Muse  v.  Swayne,  7  J 
Tenn.  (2  Lea)  251,  31  Am.  Rep. 
«07;  Tobler  v.  Austin,  22  Tex.  Civ. 
App.  99,  53  S.  W.  706;  Rucker  v. 
Campbell  (Tex.  Civ.  App.),  79  S.  W. 
€27.  In  Smith  v.  Brown,  164  Mass. 
584,  42  N.  E.  101,  however,  where  the 
stipulation  was  penal  in  form,  it  was 
held  to  be  a  penalty;  and  in  Wilkin- 

Vol.  I  — i: 


son  v.  Colley,  164  Pa.  St.  35,  30  Atl. 
286,  35  Wkly.  Notes  Cas.  177,  26 
L.  R.  A.  114,  where  the  defendant 
sought  to  have  the  stipulation  de- 
clared to  be  for  liquidated  damages 
in  order  to  prevent  the  issuance  of 
an  injunction  and  where  the  amount 
stipulated  was  much  less  than  tha 
actual  damage,  a  like  result  waa 
reached.  And  in  Heatwole  v.  Gorrell, 
35  Kan.  692,  12  Pac.  135,  where  the 
defendant  bound  himself  "  in  the  sum 
of  $500  "  not  to  engage  in  business, 
the  court  held  that  the  stipulation 
was  for  a  penalty,  saying  that  an  in- 
strument containing  such  words  is 
alwaj's  prima  facie  penal.  See  also 
Radloff  v.  Haase,  196  111.  365,  63 
N.  E.  729;  Moore  v.  Colt,  127  Pa. 
St.  289,  18  Atl.  8,  14  Am.  St.  Rep. 
845.  A  stipulation  to  act  for  plaintiff 
and  not  to  violate  the  agreement 
"  under  a  penalty  of  five  hundred 
dollars "  was  held  to  be  for  liqui- 
dated damages  in  Pastor  v.  Solomon, 
54  N.  Y.  Supp.  575,  25  Misc.  Rep.  322. 
In  Borley  v.  McDonald,  69  Vt.  309, 
38  Atl.  60,  an  employee  agreed  not 
to  solicit  insurance  for  others  within 
a  certain  time  after  leaving  plain- 
tiff's employ,  and  agreed  "  to  forfeit 
and  pay "  a  certain  sum  as  liqui- 
dated damages  in  case  of  breach. 
The  court  held  this  to  be  a  provision 
for  liquidated  damages. 


§  443  EQUITY   JUKISPRUDENCE.  738 

such  provisions,  and  the  sum  will  be  in  some  instances 
too  large  and  in  others  too  small  a  compensation  for  tha 

and  if  he  failed  to  observe  this  agreement  he  was  to  pay  the  defendant  nine 
hundred  dollars.  This  sum  was  held  to  be  liquidated  damages.  The  test  waa 
stated  by  the  court  as  follows:  "The  stipulation  is  for  a  simple  thing, 
namely,  to  abstain  from  interference  with  the  business  which  the  plaintiff  had 
sold  to  the  defendant,  and  it  is  difficult  to  ascertain  the  damages  that  may 
result  from  the  breach  of  such  a  contract."  Another  not  uncommon  instance 
under  this  rule,  in  which  the  sum  is  liquidated  damages,  is  fou)id  in  contracts 
for  the  sale  and  purchase  of  land,  where  the  vendor  agrees  to  execute  a  deed 
by  a  specified  day,  or  if  not,  that  he  will  be  liable  to  pay  a  certain  8um:« 
Chamberlain  v.  Bagley,  11  N.  H.  234;  Durst  v.  Swift,  11  Tex.  274;  or  the 
vendee  agrees  to  accept  the  deed  and  complete  the  purchase  at  a  day  named,  or 
else  that  he  will  pay  a  certain  sum:  Mimdy  v.  Culver,  18  Barb.  336;  Holmes 
V.  Holmes,  12  Barb.  137;  Gammon  v.  Howe,  14  Me.  250;  Williams  v.  Green, 
14  Ark.  315;  Yenner  v.  Hammond,  36  Wis.  277;  or  in  a  contract  for  the  ex- 
change of  lands,  the  parties  insert  a  similar  stipulation:  Gibb  v.  Linder,  7ft 
111.  137.  The  rule  has  been  applied  in  like  manner  to  the  stipulation  in  a 
lease  by  which  the  lessee  is  to  be  liable  in  a  certain  amount  if  he  violates 
some  single  specified  covenant  on  his  part;  as  where  a  lessee  covenanted  that 
he  would  not,  before  a  day  named,  negotiate  for,  or  accept,  or  be  interested 
in  any  lease  of  certain  premises,  except  from  the  plaintiff,  under  a  forfeiture 
of  ten  thousand  dollars,  and  this  was  held  to  be  liquidated  damages,  so  that 
defendant  was  liable  for  that  amount:*  Smith  v.  Coe,  33  N.  Y.  Sup.  Ct.  480; 
and  where  a  lessee  stipulated  to  pay  five  hundred  dollars  if  he  failed  to  sur- 
render up  the  premises  by  a  certain  day:  Peine  v.  Weber,  47  HI.  41.  The 
following  are  further  examples  of  the  rule,  the  certain  sum  of  money  stipulated 
to  be  paid  for  a  violation  of  the  main  agreement  being  in  each  case  liquidated 
damages.  In  a  building  contract  containing  clauses  fixing  the  days  for  com- 
pleting various  parts  of  the  work,  a  stipulation  that  for  any  failure  by  the 

(c)  Transfer  of  Land  —  Liquidated  (d)  Agreements  between  Lessor  and 
Damages. —  In  Lorins  v.  Abbott,  49  Lessee  —  Liquidated  Damages. —  By  a 
Neb.  214,  68  N.  W.  486,  it  was  lessor,  to  lease  real  property:  En- 
agreed  that  if  defendant  should  fail  gelhardt  v.  Batla  (Tex.  Civ.  App.), 
to  convey  certain  property  to  the  31  S.  W.  324,  40  S.  W.  150.  Not  to 
plaintiff,  the  latter  was  to  have  the  oust  a  tenant  before  the  termination 
use  and  control  of  the  premises  for  of  his  lease:  Guerin  v.  Stacy,  175 
one  year.  It  was  held  that  the  agree-  Mass.  595,  56  N.  E.  892.  Not  to  hold 
ment  called   for   liquidated   damages.  over     after    expiration    of     tenancy: 

Penalties. —  Agreement     to     deliver  Poppers  v.  Meagher,   184  111.   192,  35 

possession  of   land:      Eva  v.  McJtIa-  N.  E.  805.     By  a  lessee  under  a  coal 

hon,  77  Cal.  467,  19  Pac.  872.    Agre-i-  lease,  to  mine  not  less  than  a  certain 

ment  to  buy  land :     Monroe  v.  South,  number  of  tons  per  year  and  pay  a 

(Tex.    Civ.    App.),    64    S.    W.    1014.  royalty  thereon:     Martin  v.  Berwind- 

Agreement  to  quitclaim  a  mining  lo-  White  Coal  Min.  Co.,  114  Fed.  553. 

cation    if    plaintiff    sliould    secure    a  Penalties.— Agreement  by  tenant  tc 

patent:      O'Kccfe  v.   Dyer,  20   Mont.  pay  a  certain  sum  in  case  he  sliould 

477,  52  Pac.  190.  be  evicted    for  non-payment  of  rent* 


739 


CONCEENIIfG   PENALTIES    AND    FORFEITURES. 


§443 


injury  thereby  occasioned,  that  sum  is  to  be  treated  as  a 
penalty,   and  not  as  liquidated  damages.     This  rule  has- 

builder  to  comply  with  these  provisions  and  to  finish  the  work  as  agreed,  the 
employer  might  claim  compensation  at  the  rate  of  ten  dollars  per  day  for 
every  day  of  such  detention  :e  O'Donnell  v.  Rosenberg,  14  Abb.  Pr.,  N.  S.,  59^ 
and  in  a  contract  to  furnish  a  coal  company  all  the  timber  needed  for  their 
mine  during  a  year,  to  be  paid  for  at  the  rate  of  eighteen  cents  on  each  ton 
cf  all  the  coal  mined  during  the  year,  but  if  the  amount  mined  during  the 
year  should  not  equal  seventy- five  thousand  tons,  then  the  company  were  "  tc 


Jack  v.  Sinsheimer,  125  Cal.  563,  58 
Pac.   130. 

(e)  Building  Contracts. —  If  the 
amount  of  damage  caused  by  delay  is 
uncertain,  the  parties  are  allowed  to 
stipulate  for  a  fixed  amount:  .Texas, 
etc.,  R'y  Co.  v.  Rust,  19  Fed.  239; 
Lincoln  v.  Little  Rock  Granite  Co., 
56  Ark.  405,  19  S.  W.  1056;  Young 
V.  Gaunt,  69  Ark.  104,  61  S.  W.  372; 
Lawrence  County  v.  Stewart  Bros. 
(Ark.),  81  S.  W.  1059;  De  Graff, 
Vrieling  &  Co.  v.  Wickliam,  89  Iowa, 
720,  52  N.  VV.  503;  McKee  v.  Rapp, 
35  N.  Y.  Supp.  175;  Hutton  Bros.  v. 
Gordon,  2  Misc.  Rep.  267,  23  N.  Y. 
Supp.  770;  Ward  v.  Hudson  River 
Bldg.  Co.,  125  N.  Y.  230,  26  N.  E. 
256;  White  v.  School  List,  of  Brad- 
dock  Borough,  159  Pa.  St.  201,  28 
Ati.  136;  Carter  &  Co.  v.  Kaufman 
(S.  C),  45  S.  E.  1017;  Mills  v.  Paul 
(Tex.  Civ.  App.),  30  S.  W.  558; 
Brown  Iron  Co.  v.  Norwood  (Tex. 
Civ.  App.),  69  S.  W.  253;  Drumhel- 
ler  V.  American  Surety  Co.,  30  Wash. 
530,  71  Pac.  25.  Such  provisions  in 
the  following  contracts  have  been 
sustained: 

To  build  a  public  bridge. —  Malone 
V.  City  of  Philadelphia,  147  Pa.  St. 
410,  23  Atl.  628,  29  Wkly.  Notes  Cas. 
251.  To  build  a  public  building. — 
Heard  v.  Dooly  County,  100  Ga.  619, 
28  S.  E.  986  (court  house)  ;  Ferrier 
V.  Knox  County  (Tex.  Civ,  App.),  33 
S.  W.  896;  Harris  Coimty  v.  Donald- 
son, 20  Tex.  Civ.  App.  9,  48  S.  W. 
791      (furnishing     a     court     room); 


Brooks  V.  City  of  Wichita,  114  Fed. 
297,  52  C.  C.  A.  209.  To  perform 
public  work. —  Thorn  &  Hunkins 
Lime  &  Cement  Co.  v.  Citizens'  Bank, 
158  Mo.  172,  59  S.  W.  109  (construc- 
tion of  sewer)  ;  Hipp  v.  City  of 
Houston,  30  Tex.  Civ.  App.  573,  71 
S.  W.  39  (paving- streets)..  To  con- 
struct a  mill  or  factory. —  Ilennessjr 
V.  Metzger,  152  III.  505,  38  N.  E.. 
1058,  43  Am.  St.  Rep.  267  (mill)  ; 
Curtis  v.  Van  Bergh,  161  N.  Y.  47^ 
55  N.  E.  398  (factory).  To  erect 
a  church. —  Bird  v.  Rector,  etc.,. 
of  St.  John's  Episcopal  Church, 
154  Ind.  138,  56  N.  E.  129.  Mis- 
cellaneous.—  Manistee  Iron  Works 
Co.  v.  Shores  Lumber  Co.,  92  Wis. 
21,  65  N.  W.  863  (refitting  a  barge)  ; 
Kilbourne  v.  Burt  &  Brabb  Lumber 
Co.,  23  Ky.  L.  Rep.  985,  64  S.  W. 
631,  55  L.  R.  A.  275  (delivery  of 
logs)  ;  Illinois  Cent.  R.  R.  Co.  v. 
Southern  Seating  &  Cabinet  Co.,  104 
Tenn.  568,  78  Am.  St.  Rep.  933,  58 
S.  W.  303,  50  L.  R.  A.  729  (delivery 
of  church  pews)  ;  Hardie  Tynes 
Foundry  Co.  v.  Glen  Allen  Oil  MilJ 
(Miss.),  36  South.  262  (delay  in  de- 
livering engine).  Where  a  building 
is  being  constructed  for  a  particular 
use,  and  it  would  be  impossible  to 
estimate  the  value  of  that  use  cor- 
rectly, a  provision  against  delay  wili 
be  sustained,  although  the  building 
may  have  some  ascertainable  value 
for  other  purposes.  Such  is  the  case 
in  a  contract  for  the  construction  of 
a  home  for  aged  men:    Kelly  v.  Fejer- 


§443 


EQUITY   JURISPRTJDENCB. 


740 


been  laid  down  in  a  somewhat  different  form,  as  follows: 
Where  the  agreement   contains  provisions  for   the  per-" 

pay  the  difference  between  the  amount  mined  and  seventy-five  thousand  tons, 
at  a  rate  of  eighteen  cents  per  ton;"  this  eighteen  cents  per  ton  on  the  differ- 
ence, etc.,  was  held  liquidated  damages:  Wolf  Creek,  etc.,  Co.  v.  Schultz,  71 
Pa.  St.  180;  and  see  a  similar  contract  in  Powell  v.  Burroughs,  54  Pa.  St. 
329,  336;  an  agreement  to  improve  land  on  which  the  other  party  has  a  mort- 
gage or  lien:  Pearson  v.  Williams,  24  Wend.  240,  26  Wend.  030;  an  agree- 
ment guaranteeing  the  validity  of  a  patent  right:  Brewster  v.  Edgerly,  13 
N.  H.  275;  an  agreement  to  perform  certain  work  and  labor,  or  to  furnish 


vary  (Iowa),  78  N.  W.  828.  In 
Reichenbach  v.  Sage,  13  Wash.  364, 
43  Pac.  354,  52  Am.  St.  Rep.  51,  such 
a  provision  in  a  contract  for  the  con- 
struction of  a  residence  was  upheld. 
The  court  said :  "  Values  of  rents  are 
fluctuating,  and  dwelling-houses  of 
the  character  and  description  of  this 
one  are  ordinarily  not  built  for  rent 
at  all,  but  for  the  convenience  and 
comfort  of  the  owners;  and,  inas- 
much as  the  parties  saw  fit  to  settle 
in  advance  the  question  of  damages, 
and  it  seems  to  be  on  an  equitable 
basis,  we  do  not  feel  justified  in  dis- 
turbing that  contract,  and  holding 
that  it  was  a  contract  which  the  par- 
ties had  no  right  to  make."  If  the 
rental  value  is  a  proper  measure  of 
damage  the  provision,  in  some  juris- 
dictions, is  held  to  be  a  penalty: 
Patent  Brick  Co.  v.  Moore,  75  Cal. 
205,  16  Pac.  890;  Brennan  V.  Clark, 
29  Neb.  385,  45  N.  W.  472.  But  the 
party  who  is  maintaining  that  a  pro- 
vision is  a  penalty  because  there  is 
an  ascertained  rental  value  must 
show  what  the  rental  value  is:  De 
Graff,  Vrieling  &  Co.  v.  Wickham, 
89  Iowa,  720,  52  N.  W.  503.  It  is 
quite  frequently  stated  that  the 
amount  agreed  upon  must  not  be  un- 
reasonable and  out  of  proportion  to 
the  probable  damages.  The  rule  is 
well  stated  in  Collier  v.  Betterton, 
87  Tex.  440,  29  S.  W.  467 :  "  There- 
fore the  principle  would  seem  to  be 
that,   although   a   sum   be   named   aa 


*  liquidated  damages,'  the  courts  will 
not  so  treat  it,  unless  it  bear  such 
proportion  to  the  actual  damages 
that  it  may  reasonably  be  presumed 
to  have  been  arrived  at  upon  a  fair 
estimation  by  the  parties  of  the  com- 
pensation to  be  paid  for  the  pros- 
pective loss.  If  the  supposed  stipula- 
tion greatly  exceed  the  actual  lods, 
if  there  be  no  approximation  between 
them,  and  this  be  made  to  appear  by 
the  evidence,  then,  it  seems  to  us,  and 
then  only,  should  the  actual  damages 
be  the  measure  of  the  recovery."  See 
also  Mills  V,  Paul  (Tex.  Civ.  App.), 
30  S.  W.  558.  In  the  following  cases 
it  was  held  that  the  amounts  stipu- 
lated for  were  reasonable:  Ward  T. 
Hudson  River  Bldg.  Co.,  125  N.  Y. 
230,  26  N.  E.  256;  Curtis  v.  Van 
Bergh,  161  N,  Y.  47,  55  N.  E.  398; 
Bird  V.  Rector,  etc.,  of  St.  John's 
Episcopal  Church,  154  Ind.  138,  56 
N.  E.  129;  De  Graff,  Vrieling  &  Co. 
V.  Wickham,  89  Iowa,  720,  52  N.  W. 
503;  Heard  v,  Dooly  County,  101  Ga. 
619,  28  S.  E.  986;  Lincoln  v.  Little 
Rock  Granite  Co.,  56  Ark.  405,  19  S. 
W.  1050;  Thorn  &  Hunkins  Lime  & 
Cement  Co.  v.  Citizens'  Bank,  158 
Mo.  172,  59  S.  W.  109.  But  in  Coch- 
ran V.  People's  R'y  Co.,  113  Mo.  359, 
21  S.  W.  6,  the  amount  stipulated  for 
was  held  to  be  so  disproportionate  to 
the  actual  damage  as  to  be  a  penalty. 
See  also  Weedon  v.  American  Bond- 
ing &  Trust  Co.,  38  S.  E.  255,  128 
N.   C.   09;    Cochran   v.   People's   R'y 


741  CONCERNING   PENALTIES   AND   FORFEITURES.  §  443 

formance  or  non-performance  of  acts  which  are  not  meas- 
urable by  any  exact  pecuniary  standard,  and  also  of  one 

certain  materials,  within  a  specified  time:'  Curtis  v.  Brewer,  17  Pick.  513; 
FauDce  v.  Burke,  19  N.  J.  L.  469,  55  Am.  Dec.  519;  an  agreement  lor  the 
punctual  payments  of  an  annuity:  Berrikott  v.  Traphagen,  39  Wis.  220.  In 
applying  this  second  rule  of  the  text,  it  is  important  to  observe  that  a  con- 
tract may  come  within  its  scope  and  operation,  which  includes  various  par- 
ticulars differing  in  kind  and  importance,  provided  they  are  in  effect  one; 
all  taken  together  only  make  up  one  whole,  the  violation  of  which  is  to  be 
compensated  by  the  fixed  sum.  In  other  words,  a  contract  of  this  kind  does 
Qot  necessarily  fall  under  the  third  rule  given  in  the  text;  but  the  sum  made 
payable  may  be  liquidated  damages.  The  intention  of  the  parties,  however, 
as  ascertained  from  the  whole  instrument,  would  guide  the  court:  Clement 
V.  Cash,  21  N.  Y.  253;  Bagley  v.  Peddie,  16  N.  Y.  470,  69  Am.  Dec.  713; 
Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am.  Dec.  716;  Leary  v.  Laflin,  101  Mass. 
334.  In  Clement  v.  Cash,  21  N.  Y.  253,  Wright,  J.,  applied  the  rule  as  fol- 
lows :  "  The  contract  in  question,  in  legal  effect,  provided  but  for  the  per- 
formance of  a  single  act  on  each  side,  and  at  the  same  period  of  time,  viz.,, 
the  execution  and  delivery  of  a  deed  of  the  land  by  the  defendant,  and  pay- 
ment therefor  by  the  plaintiff.  That  the  defendant  agreed  to  receive  in  pay- 
ment for  his  deed,  and  the  plaintiff  to  pay  simultaneously  with  its  delivery, 
the  consideration  in  money  and  other  property,  cannot  divest  what  was  to  be 
done  of  the  character  of  a  single  transaction.  If  the  defendant  failed  to  con- 
vey, or  the  plaintiff  to  make  payment  in  the  way  covenanted,  there  was  a 
total  non-performance.  The  consideration  to  be  paid  was  nine  thousand  dol- 
lars, of  which  four  thousand  was  to  be  in  cash,  and  five  thousand  dollars  in 
securities,  the  cash  and  transfers  of  the  securities  to  be  passed  over  to  the 
defendant  on  receipt  of  the  deed."  In  Cotheal  v.  Talmage,  9  N.  Y.  551,  61 
Am.  Dec.  716,  the  defendant  and  others  had  severally  covenanted  that  they 
would  diligently  devote  themselves  to  obtaining  gold  and  other  precious  metals 
by  mining  in  California,  imder  regulations  specified  in  the  agreement;  that 
a  certain  portion  of  the  earnings  of  each  should  be  paid  to  the  plaintiff;  and 
that  any  of  them  who  failed  to  keep  his  engagement  should  pay  five  hundred 
dollars.    The  defendant  had  violated  the  agreement  by  absenting  himself  from 

Co.,   113  Mo.  359,  21   S.  W.  6;   Jen-  damages,  for  they  cannot  be  appor- 

nings  V.  Wilier   (Tex.  Civ.  App.),  32  tioned. 

S.    W.    24;    J.    G.    Wagner    Co.    v.  (f)    To    Perform    Work   within    a 

Cawker,  112  Wis.  532,  88  N.  W.  532;  Certain  Time  —  Liquidated  Damages. 

Lee    V.    Carroll    Normal    School    Co.  — Agreement  to  fulfill  the  terms  of  a 

(Neb.),  96  N.  W.   65;    Coen  &  Con-  franchise  and  have  an  electric  light 

way  V.  Birchard    (Iowa),   100  N.  W.  plant  in  operation  by  a  certain  time: 

48.     For  a  discussion  of  the  general  City  of  Salem  v.  Anson,  40  Oreg.  339, 

application  of  the  principles  here  laid  67  Pac.  190,  56  L.  R.  A.  169. 

down,  see  §  440,  note.     In  Willis  v.  Penalties. — Agreement  to  repair  fire 

Webster,  1  App.  Div.  301,  37   N.  Y.  hydrants     within     a     certain     time: 

Supp.  354,  it  was  held  that  where  the  Light,  Heat  &  Water  Co.  v.  City  of 

o^vner  is  responsible  for  part  of  the  Jackson,  73  Miss.  598,  19  South.  77L 
delay,  he  ia  not  entitled  to  liquidated 


/§  443  EQUITY   JURISPRUDENCE.  742 

or  more  other  acts  in  respect  of  which  the  damages  are 
easily  ascertainable  by  a  jury,  and  a  certain  sum  is  stipu- 

the  mining  district,  and  refusing  to  devote  himself  to  the  search  for  gold 
The  five  himdred  dollars  was  held  to  be  liquidated  damages,  since  all  the  par- 
ticulars agreed  to  be  done  were  not  independent  stipulations,  but  together  con- 
stituted a  single  undertaking  which  the  defendant  was  boimd  to  perform.  Id 
Leary  v.  Lafiin,  101  Mass.  334,  the  lessee  of  a  livery-stable  bound  himself  for 
the  payment  of  one  thousand  dollars,  if  he,  the  lessee,  "  should  not  keep  the 
stable  during  the  demised  term  in  a  manner  as  satisfactory  to  all  reasonable 
parties  as  the  lessor  had  done,  and  at  the  end  of  the  term  surrender  said 
premises  and  good-will  in  as  good  repute  and  run  of  custom  as  now  thereto 
pertain;"  and  the  one  thousand  dollars  was  on  the  same  ground  held  to  be 
liquidated  damages. 

Does  this  second  rule  of  the  text  include  in  its  operation  contracts  for  the 
purchase  and  sale  of  goods  and  chattels  or  securities?  It  has  been  said  that 
it  does  not,  and  that  a  stipulation  to  pay  a  fixed  sum  on  the  violation  of  such 
a  contract  must  necessarily  be  a  penalty,  since  the  legal  measure  of  damages 
can  always  be  exactly  ascertained,  being  in  fact  prescribed  by  the  law,  namely, 
the  difl'erence  between  the  market  price  and  the  price  agreed  to  be  paid: 
Jemmison  v.  Gray,  29  Iowa,  537;  Lee  v.  Overstreet,  44  Ga.  507;  Shreve  v. 
Brereton,  51  Pa.  St.  175,  186;  Burr  v.  Todd,  41  Pa.  St.  209;  Taylor  v.  The 
Marcella,  1  Woods,  302.  It  is  plain  that  there  are  many  cases  in  respect  of 
which  this  reasoning  is  sound  and  this  conclusion  is  just.  It  is  equally  plain 
that  there  is  another  class  of  cases  to  which  neither  this  reasoning  nor  conclu- 
sion can  apply.  In  many  contracts  for  the  purchase  and  sale  of  personal 
property,  there  is  no  such  means  of  accurately  measuring  the  damages  which 
result  from  a  violation.  If  the  agreement  is  for  the  sale  generally  of  things 
of  a  certain  kind  or  description,  on  a  default  the  vendee  can,  as  a  rule,  go 
into  the  market  and  purchase  other  articles  answering  to  the  description; 
the  measure  of  his  loss  is  then  fixed  by  the  law  at  the  difference  between  the 
market  price  which  he  pays,  and  the  agreed  price;  and  any  certain  sum  stipu- 
lated to  be  paid  him  by  way  of  compensation  would  be  a  penalty.  But  where 
the  agreement  is  for  the  sale  and  delivery  of  certain  specified  things,  there 
may  not  be  any  mode  of  ascertaining  the  amount  of  loss  resulting  from  a  non- 
performance, and  the  certain  sum  fixed  upon  by  the  contract  may  be  liqui- 
dated damages,  and  not  a  penalty.  This  would  clearly  be  so  in  all  those 
contracts  for  the  delivery  of  personal  property,  wliich  a  court  of  equity  would 
specifically  enforce:  Lynde  v.  Thompson,  2  Allen,  460,  per  BigLlow,  C.  J.; 
■Gammon  v.  Howe,  14  Me.  250;  Chamberlain  v.  Bagley,  11  N.  H.  234;  Mead 
V.  Wheeler,  13  N.  H.  351;  Tingley  v.  Cutler,  7  Conn.  291;  Shiell  v.  McNitt, 
9  Paige,  101,  103;  Clement  v.  Cash,  21  N.  Y.  253;  Knapp  v.  Maltby,  13  Wend. 
587;  Streeper  v.  Williams,  48  Pa.  St.  450;  Hise  v.  Foster,  17  Iowa,  23;  Morse 
V.  Rathburn,  42  Mo.  594,  07  Am.  Dec.  359;  Williams  v.  Green,  14  Ark.  315, 
327.  If,  however,  the  8tip>ilated  sum  should  be  excessive  in  amount,  and 
greatly  exceed  the  value  of  the  property,  this  would  be  a  strong,  even  if  not 
conclusive,  reason  for  a  court  of  equity  to  treat  it  as  a  penalty:*    See  Spencer 

(K)  Personal  Property  —  Liquidated  Edison  Electric  Ilium.  Co.,  53  N.  Y. 
Damages. — Agreement  to  i)urciia.He  the  Supp.  302.  Sale  of  a  slave:  Tardo- 
.«tock   of  a  corporation:      Leeuian   v.       veau  v.  Smith,  3  Ky.    (Hardin)    175, 


743 


CONCERNING    PENALTIES    AND    FORFEITURES. 


§444 


lated  to  be  paid  upon  a  violation  of  any  or  of  all  these  pro- 
visions, such  sum  must  be  taken  to  be  a  penalty.^ " 

§  444.    Fourth.  Whether  an  agreement  provides  for  the 
performance  or  non-performance  of  one  single  act,  or  of 

V.  Tilden,  5  Cow.  144;  Haldeman  v.  Jennings,  14  Ark.  329;  Williams  v.  Green, 
14  Ark.  315,  326;  Burr  v.  Todd,  41  Pa.  St.  206. 

1  Snell's  Equity,  288;  Kemble  v,  Farren,  6  Bing.  141;  Davies  v.  Penton, 
6  Barn.  &  C.  216,  223;  Horner  v.  Flintoflf,  9  Mees.  &  W.  678,  681;  Dimick 
V.  Corlett,  12  Moore  P.  C.  C.  199;  Trower  v.  Elder,  77  111.  452,  and  cases 
cited;  First  Orthodox  Church  v.  Walrath,  27  Mich.  232;  Cook  v.  Finch,  19 
Minn.  407;  Morris  v.  McCoy,  7  Nev.  399;  Dullaghen  v.  Fitch,  42  Wis.  679; 
Lyman  v.  Babcock,  40  Wis.  503;  Savannah  R.  R.  v.  Callahan,  56  Ga.  331; 
Shreve  v.   Brereton,   51   Pa.   St.   175,   180;    Niver  v.  Rossman,   18   Barb.   50; 


3  Am.  Dec.  727.  In  Cummings  v. 
Dudley,  60  Cal.  383,  44  Am.  Rep.  58, 
a  provision  in  a  contract  to  sell 
horses,  where  no  time  was  fixed  for 
delivery  and  no  specified  horses  were 
agreed  upon,  was  held  to  be  for  liqui- 
dated damages.  A  stipulation  for 
liquidated  damages  for  failure  to  de- 
liver cattle  sold  has  been  enforced: 
Frost  V.  Foote  (Tex.  Civ.  App.),  44 
S.  W.  1071;  Copeland  v.  Holman 
(Tex.  Civ.  App.),  51  S.  W.  257;  Mil- 
lar v.  Smith,  28  Tex.  Civ.  App.  386, 
67  S.  W.  429.  In  Maxwell  v.  Allen, 
78  Me.  32,  3  Atl.  386,  57  Am.  Rep. 
783,  a  provision  in  a  contract  by  one 
partner  to  sell  a  stock  of  goods  to 
another  was  held  to  be  for  liquidated 
damages. 

Penalties. —  Agreement  for  sale  of 
stock  or  bonds  which  have  a  market 
value:  Baird  v.  Tolliver,  25  Tenn.  (6 
Humph.)  186,  44  Am.  Dec.  298; 
Graham  v.  Bickham,  4  Dall.  149,  2 
Yeates,  32,  1  Am.  Dec.  328.  Sale  of 
sheep  or  cattle:  Squires  v.  Elwood, 
33  Neb.  126,  49  N.  W.  939;  Home 
Land  &  Cattle  Co.  v.  McNamara,  111 
Fed.  822,  49  C.  C.  A.  642.  Sale  of 
railroad  ties:  Gulf,  C.  &  S.  F.  R. 
Co.  v.  Ward  (Tex.  Civ.  App.),  34 
S.  W.  328.  Sale  of  buggies:  Maiisur 
&  Tebbetts  Impl.  Co.  v.  Willet  (Okla.), 
61  Pac.   1060.     Sale  of  bags:   Pacific 


Factor  Co.  v.  Adler,  90  Cal.  110,  27 
Pac.  36,  25  Am.  St.  Rep.  102.  A 
person  to  whom  is  awarded  a  con- 
tract to  furnish  a  city  with  certain 
articles  of  personalty  may  recover  a 
certified  check  deposited  with  the 
city  under  a  provision  of  law  requir- 
ing all  bidders  to  make  such  deposit, 
and  providing  that  if  the  successful 
bidder  shall  enter  into  contract  with 
bond,  without  delay,  his  deposit  shall 
be  returned,  when,  without  fault  on 
his  part,  such  successful  bidder  to 
whom  the  contract  is  awarded  is  un- 
able to  procure  a  surety  on  his  bond, 
and,  for  this  reason,  the  contract  is 
subsequently  awarded  by  the  city  to 
another  bidder  for  a  much  smaller 
sum  than  the  former  bid.  In  such 
case  the  deposit  must  be  regarded  as 
a  penalty  and  not  as  liquidated  dam- 
ages: Willson  V.  Mayor,  83  Md.  203, 
34  Atl.  774,  55  Am.  St.  Rep.  339. 

(a)  Quoted  in  Everett  Land  Co.  v. 
Maney,  10  Wash.  552,  48  Pac.  243. 
See  Willson  v.  Love  [1896],  1 
Q.  B.  626  (establishing  the  rule  in 
its  first  form)  ;  East  Moline  Plow 
Co.  v.  Weir  Plow  Co.,  95  Fed.  250; 
Smith  V.  Newell,  37  Fla.  147,  20 
South.  249;  Momnouth  Park  Ass'n 
V.  Warren,  55  N.  J.  L.  598,  27  Atl. 
932;  Nash  v.  Hermosilla,  9  Cal.  584, 
70   Am.   Dec.   676;    Iroquois   Furnace 


§  444  EQUITY   JUKISPEUDENCE.  744 

several  distinct  and  separate  acts,  if  the  stipulation  to  pay 
a  certain  sum  of  money  upon  a  default  is  so  framed,  is 
of  such  a  nature  and  effect  that  it  necessarily  renders 
the  defaulting  party  liable   in  the   same   amount  at   all 

Jackson  v.  Baker,  2  Edw.  Ch.  471;  Cheddick  v.  Marsh,  21  N.  J.  L.  363;  Whit^ 
field  V.  Levy,  35  N.  J.  L.  149;  Berry  v.  Wisdom,  3  Ohio  St.  244;  Basye  v. 
Ambrose,  28  Mo.  39;  Long  v.  Towl,  42  Mo.  548,  97  Am.  Dec.  355. 

In  the  leading  case  upon  this  rule  (Kemble  v.  Farren,  G  Bing.  141)  the 
defendant  had  agreed  to  act  as  principal  comedian  at  the  plaintiff's  theater 
for  four  seasons,  conforming  in  all  things  to  the  rules  of  the  theater.  The 
plaintiff  was  to  pay  the  defendant  three  pounds  every  night  the  theater  was 
open,  with  other  terms.  The  agreement  contained  a  clause  that  if  either  of 
the  parties  should  neglect  or  refuse  to  fulfill  the  said  agreement,  or  any  part 
thereof,  or  any  stipulation  therein '  contained,  such  party  should  pay  to  the 
other  the  sum  of  one  thousand  pounds,  to  which  sum  it  was  thereby  agreed 
that  the  damages  sustained  by  such  omission  should  amount,  and  which  sum 
was  thereby  declared  by  the  parties  to  be  liquidated  and  ascertained  dam- 
ages, and  not  a  penalty  or  penal  sum,  or  in  the  nature  thereof.  The  breach 
alleged  was  that  defendant  refused  to  act  during  the  second  season.  The 
court  held  that  the  sum  of  one  thousand  pounds  must  be  taken  to  be  a 
penalty,  as  it  was  not  limited  to  those  breaches  which  were  of  an  uncertain 
nature  and  amount.  The  mere  fact,  however,  that  an  agreement  contains 
two  or  more  provisions  differing  in  kind  and  importance  does  not  of  itself 
necessarily  bring  it  within  the  operation  of  this  rule.  If  the  various  acts 
stipulated  to  be  done  are  but  minor  parts  of  one  single  whole, —  steps  in  the 
accomplishment  of  one  single  end, —  so  that  the  contract  is  in  reality  one, 

Co.  V.  Wilkin  Mfg.  Co.,  181  111.  582,  than   nominal    damages    could   result 

64  N,   E.   987;    Carter  v.   Strom,   41  from  a  breach  of  the  former,  while  a 

Minn.   522,   43   N.   W.    394;    City   of  breach    of    the    latter    might,    under 

Madison  v.  American  Sanitary  Engi-  certain  circumstances,  result  in  very 

neering  Co.    (Wis.),  95  N.  W.   1097;  heavy  damages.     In  case  the  former 

Mansur  &  Tebbetts  Impl.  Co.  v.  Tis-  condition  alone  had  been  broken,  and 

Bier  Arms  &  Ildw.  Co.,  136  Ala.  597,  the  other   complied   with   by   a   com- 

33  South.  818;   Krutz  v.  Robbins,  12  pletion  of  the  work  in  the  prescribed 

Wash.   7,   28   L.   R.   A.   67G,   40   Pac.  time,   it  would  be  unconscionable   to 

415,  50  Am.  St.  Rep.  871;  Hooper  v.  allow  $1,000  as  liquidated  damages; 

Savannah,  etc.,  R.  R.  Co.,  69  Ala.  529.  and  this  is  a  powerful  argument  in 

In  City  of   El   Reno  v.   Cullinane,   4  support  of  the  presumption  that  the 

Okla.   457,   46   Pac.   510,   a  bond   for  parties  did  not  intend  the  sum  named 

$1,000  was  given  with  two  conditions  as  liquidated  damages."     In  Keck  v. 

—  one    that    certain    work    be    com-  Bieber,  148  Pa.  St.  645,  24  Atl.  170, 

mcnced   by  a   certain   day,   the  other  33    Am.    St.    Rep.    846,    there    were 

tliat  the  work  be  completed  by  a  cer-  covenants   to   indemnify   plaintiff,   to 

tain    day.     The   court   held   the   pro-  pay  a  royalty,  to  fill  up  certain  holes, 

vision     to     be     a     penalty,     saying:  to    use    a    certain    road,    etc.      One 

"  These     conditions     seem     very     un-  amount  was  stipulated  for  in  case  of 

equal.    It  is  difficult  to  see  how  more  breach.     The  provision   was  held  to 


745  CONCERNING   PENiVLTIES    AND    FORPEITUKBS.  §  444 

events,  both  when  his  failure  to  perform  is  complete,  and 
when  it  is  only  partial,  the  sum  must  be  regarded  as  a 
penalty,  and  not  as  liquidated  damages.*    This  rule  plaiuly 

then  it  may  properly  come  under  the  operation  of  the  second  rule  as  given 
in  the  text.  See  the  cases  illustrating  this  position,  ante,  in  the  note  under 
§  442,  A  series  of  decisions  by  the  New  York  court  of  last  resort  deny  the 
correctness  of  the  rule  in  the  form  as  given  in  the  text  and  as  adopted  by  the 
great  majority  of  cases;  and  insist  that  the  following  is  its  true  reading,  as 
derived  from  the  early  authorities,  viz.:  Where  a  party  binds  himself  to  do 
several  things  of  different  degrees  of  importance,  a  certain  sum  of  money 
made  payable  upon  the  non-performance  of  either  or  any  is  necessarily  a 
penalty  only  when  one  of  these  several  things  agreed  to  be  done  is  the  pay- 
ment of  a  sum  of  money.  Thus  in  Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am, 
Dec.  71G,  the  facts  of  which  are  briefly  stated  in  a  previous  note,  Ruggles,  J., 
after  quoting  the  rule  in  its  usual  form,  and  as  given  in  the  text,  said: 
"  This  doctrine,  in  the  cases  in  which  it  is  asserted,  is  traced  to  the  cases  of 
Astley  V.  Weldon,  2  Bos.  &  P.  346,  and  Kemble  v.  Farren,  6  Bing.  141,  but 
I  do  not  understand  either  of  these  cases  as  establishing  any  such  rule.  The 
principle  to  be  deducted  from  them  is,  that  where  a  party  agrees  to  do  sev- 
eral things,  one  of  which  is  to  pay  a  sum  of  money,  and  in  case  of  a  failure 
to  perform  any  or  either  of  the  stipulations,  agrees  to  pay  a  larger  sum  as 
liquidated  damages,  the  larger  sum  is  to  be  regarded  in  the  nature  of  a 
penalty;  and  being  a  penalty  in  regard  to  one  of  the  stipulations  to  be  per- 
formed, is  a  penalty  as  to  all."  To  the  same  effect  are  Clement  v.  Cash,  21 
N.  Y.  253,  259;  Bagley  v.  Peddie,  16  N.  Y.  470,  69  Am.  Dec.  713.1» 

be  a  penalty.     In  Wilhelm  v.  Eaves,  and    it   was   also   admitted,    but   not 

21  Oreg.  194,  27  Pac.  1053,  14  L.  R.  decided,     that    the     stipulated     sum 

A.  297,  the  plaintiff  was  made  man-  might  be  regarded  as  a  penalty  when 

ager   of    defendant's    market.      There  one  or  more  of  the  breaches  provided 

were  stipulations  on  defendant's  part  for  was  of  trifling  importance.     But 

as  to  amount  of  compensation,  as  to  in  the  recent  case  of  Willson  v.  Love 

lease   of   a   restaurant,   etc,,   and   on  [1896],    1   Q.   B.   626,   these   observa- 

plaintiff's    part    as    to    keeping    the  tions  of  Jessel,  M.  R.,  were  expressly 

market    clean,    open    during    certain  overruled,  the  rule  in  the  first  form 

hours,  and  refraining  from  incurring  stated  by  the  author  was  adopted  and 

certain  debts,  etc.      The  contract  pro-  made  the  basis  of  the  decision  of  the 

vided  for  $200  damages  to  secure  per-  court,    and    the    effect    of   Wallis    v. 

formance  of  "  all  and  every  "  of  the  Smith  was  limited  to  its  facts,  viz., 

covenants.      The    text   was    cited    as  to  cases  not  of  penalty,  but  of  the 

authority   for   holding   the   provision  forfeiture    of    a    deposit.       The    rule 

to  be  a  penalty.  may,   therefore,   be   regarded   as    set- 

{!>)   In    Wallis    v.    Smith,    L.    R.  tied,  so  far  as  the  English  cases  are 

21    Ch.   Div.   243,   the   English   cases  concerned. 

were     reviewed     by    Jessel,    M.     Jtt.,  (a)  Quoted  in  Heatwole  v.  Gorrell, 

and   the    first    form    of   the    rule    as  35   Kan.   692,   12   Pac.   135;    cited  in 

stated   in   the   text   was   rejected,   as  Gay  Mfg.  Co.  v.  Camp,  65  Fed.  794, 

Bupported   by   dicta  only.      The   rule  13  C.  C.  A.  137,  25  U.  S.  App,  134. 
of  Cotheal  v.  Talmage  was  admitted. 


§  445  EQUITY   JURISPRUDENCE.  746 

rests  upon  the  same  grounds  as  the  third,   and  may  be 
considered  a  particular  application  thereof/  ^ 

§  445.  Fifth.  Finally,  although  an  agreement  may  con- 
tain two  or  more  provisions  for  the  doing  or  not  doing 
different  acts,  still,  where  the  stipulation  to  pay  a  cer- 
tain sum  of  money  upon  a  default  attaches  to  only  one 

1  Jemmison  v.  Gray,  29  Iowa,  537 ;  Lee  v.  Overstreet,  44  Ga.  507 ;  Hamaker 
V.  Schroers,  49  Mo.  406;  Taylor  v.  The  Marcella,  1  Woods,  302;  Lyman  v. 
Babcock,  40  Wis.  503;  Dallaghen  v.  Fitch,  42  Wis.  679;  Ex  parte  Pollard, 
17  Bank.  Reg.  228;  Savannah  R.  R.  v.  Callaghan,  56  Ga.  331;  Shreve  v. 
Brereton,  51  Pa.  St.  175;  Curry  v,  Larer,  7  Pa.  St.  470,  49  Am.  Dec.  486; 
Perkins  v.  Lyman,  11  Mass.  76,  6  Am.  Dec.  158;  Lampman  v.  Cochran,  16 
N.  Y,  269,  277.  In  Jemmison  v.  Gray,  29  Iowa,  537,  the  contract  was  to 
deliver  sixty  thousand  railroad  ties,  to  be  paid  for  as  delivered,  but  ten  per 
cent  of  the  monthly  estimates  were  to  be  retained  by  the  buyer  as  a  security 
for  the  final  completion.  This  ten  per  cent  was  held  to  be  a  penalty,  and  not 
liquidated  damages.  In  Lee  v.  Overstreet,  44  Ga.  507,  defendant  contracted 
to  deliver  all  the  turpentine  made  on  his  plantation  in  lots  of  forty  barrels 
each,  to  be  paid  for  on  delivery,  at  the  rate  of  five  dollars  per  barrel,  and 
either  party  failing  was  to  forfeit  one  thousand  dollars.  This  sum  was  held 
to  be  a  penalty.  In  Shreve  v.  Brereton,  51  Pa.  St.  175,  the  contract  was  simi- 
lar, to  deliver  one  thousand  barrels  of  petroleum,  to  be  paid  for  in  a  specified 
manner,  and  the  parties  bound  themselves  in  the  sum  of  ten  thousand  dollars, 
not  as  a  penalty,  but  as  liquidated  damages.  The  court  said  that  the  inten- 
tion could  not  have  been  for  the  vendor  to  be  liable  for  that  large  sum  when 
he  failed  to  deliver  only  one  barrel,  as  much  as  when  he  failed  to  deliver  the 
whole  one  thousand  barrels,  and  the  sum  must,  therefore,  have  been  meant  as 
a  penalty.  In  Hamaker  v.  Schroers,  49  Mo.  406,  defendant  agreed  to  sell  and 
deliver  one  hundred  grain-drills  of  a  specified  kind  in  a  certain  time,  or  be 
liable  to  pay  sixteen  hundred  dollars.  The  court  held  that  to  regard  this  sum 
as  liquidated  damages  would  subject  the  defendant  to  the  same  liability  Upon 
failing  to  deliver  only  one  of  the  machines  as  upon  failing  to  deliver  them  all, 
and  the  sum  must  be  treated  as  a  penalty.  It  should  be  observed  that  this  rule 
must  always  be  taken  into  account  in  every  case  where  it  is  sought  to  apply 
the  second  rule  of  the  text,  for  its  eff"ect  is  necessarily  to  modify  the  operation 
of  that  rule.  In  other  words,  there  are  many  agreements  which  would  other- 
wise come  under  the  second  rule  because  there  is  no  means  of  accurately  fixing 
the  legal  measure  of  damages  resulting  from  a  violation,  but  which  are  pre- 
vented from  so  doing,  since  the  liability  to  pay  a  certain  sum  is  made  to  be  the 
same,  whotlier  the  failure  to  perform  is  complete  or  only  partial. 

(b)  Thus,  in  Johnson  v.  Cook,  24  The  case  was  held  to  come  within  the 

Wasli.    274,    64    Pac.    729,    a    certain  rule  stated  in  the  text.     See  Wibaux 

sum  was  stipulated  for  in  case  defend-  v.  Grinnell,  etc.,  Co.,  9  Mont.  154,  22 

ant  Hhould  not  complete  a  house  and  Pac.  492. 
remove  all    liena   from   the   property. 


747  CONCERNING   PENALTIES    AND    FORFEITURES.  §  445 

of  these  provisions,  which  is  of  such  a  nature  that  there 
is  no  certain  means  of  ascertaining  the  amount  of  dam- 
ages resulting  from  its  violation/  *  or  where  all  of  the 
provisions  are  of  such  a  nature  that  the  damages  occa- 
sioned by  their  breach  cannot  be  measured,  and  a  certain 
sum  is  made  payable  upon  a  default  generally  in  any  of 
them,^** — in  each  of  these  cases,  the  sum  so  agreed  to  be 
paid  may  be  considered  as  liquidated  damage,  provided, 
of  course,  that  the  language  of  the  stipulation  does  not 
bring  it  within  the  limitations  of  the  preceding  fourth 
rule.  It  is  evident  that  this  proposition,  in  both  its  branches, 
is  identical  in  substance  with  the  second  rule,  heretofore 
given,  and  rests  upon  exactly  the  same  grounds.  The 
foregoing  rules  may  be  considered  as  settled  by  the  strong 
preponderance  of  judicial  authority,  and  they  serve  to 
explain  large  and  important  classes  of  cases.  There  are 
undoubtedly  numerous  instances  which  cannot  be  easily 
referred  to  either  of  these  rules;  and  this  must  be  so 
almost  as  a  matter  of  necessity.  Since  agreements  are 
of  infinite  variety  in  their  objects  and  in  their  provisions, 
and  since  the  question  of  penalty  or  liquidated  damages 
is  always  one  of  intention,  depending  upon  the  terms  and 
circumstances  of  each  particular  contract,  there  must  be 
many  agreements  which  cannot  be  brought  within  the  scope 

1  Green  v.  Price,  13  Mees.  &  W.  695,  16  Mees.  &  W.  354;  Rawlinson  v.  Clarke, 
14  Mees.  &  W.  187;  Shute  v.  Hamilton,  3  Daly,  4G2 ;  Mott  v.  Mott,  11  Barb. 
134;  Dakin  v.  Williams,  17  Wend.  447,  22  Wend.  201;  Pearson  v.  Williams, 
24  Wend.  244,  26  Wend.  630;  Mead  v.  Wheeler,  13  N.  H.  301;  Hodges  v. 
King,  7  Met.  583;  Lange  v.  Week,  2  Ohio  St.  519;  Watts  v.  Sheppard,  2  Ala. 
425,  445. 

2Atkyns  v.  Kinnier,  4  Ex.  776-783;  Galsworthy  v,  Strutt,  1  Ex.  G59;  Hall 
V.  Crowley,  5  Allen,  304,  81  Am.  Dec.  745;  Chase  v.  Allen,  13  Gray,  42;  Young 
V.  White,  5  Watts,  460;  Powell  v.  Burroughs,  54  Pa.  St.  329,  336;  O'Donnell  v. 
Rosenberg,  14  Abb.  Pr.,  N.  S.,  59;  Leary  v.  Laflin,  101  Mass.  334;  Dwinel  v. 
Brown,  54  Me.  458;  Clement  v.  Cash,  21  N.  Y.  253;  Cotheal  v.  Talmage,  9 
N.  Y.  551,  61  Am.  Dec.  716;  Bagley  v.  Peddie,  16  N.  Y.  470,  69  Am.  Dec.  713. 

(a)    Emery   v.   Boyle,   200   Pa.   St.  (b)    See  Wallis  v.  Smith,  L.  R.  21 

249,  49  Atl.  779   (dictum).  Ch.  Div.  243, 


§446 


EQUITY   JURISPRUDENCE. 


748- 


of  any  specific  rule,  and  with  which  a  court  can  only  deal 
by  appljdng  the  most  general  canon  of  interpretation.^  *" 

§  446.  No  Election  to  Pay  the  Penalty  and  not  to  Perform. — 
"With  respect  to  the  effect  of  a  penalty  upon  the  equitable 
rights   of  the  parties,   while  a  court   of  equity  will  re- 

8  In  the  following  cases,  not  already  cited  in  the  former  notes,  the  sum  was- 
held  to  be  a  penally:  Cohvell  v.  Lawrence,  38  N.  Y.  71;  Green  v.  Tweed,  13 
Abb.  Pr.,  N.  S.,  427  (excessive  amount)  ;  Staples  v.  Parker,  41  Barb.  648; 
Wallis  V.  Carpenter,  13  Allen.  19;  Long  v.  Towl,  42  Mo.  545,  97  Am.  Dec.  355; 
Ranger  v.  Great  Western  R'y  Co.,  5  H.  L.  Cas.  72.  And  in  the  following  cases 
the  sum  was  held  to  be  liquidated  damages:  Leggett  v.  Mut.  Life  Ins.  Co.,  50 
Barb.  61G;  Gobble  v.  Linder,  76  111.  157;  Ryan  v.  Martin,  16  Wis.  57;  Hise  v. 
Foster,  17  Iowa.  23;  Morse  v.  Rathburn,  42  Mo.  594,  97  Am.  Dec.  359;  Streeter 
V.  Rush,  25  Cal.  67 ;  Lightner  v.  Menzel,  35  Cal.  452. 


(c)  The  five  rules  stated  in  §§  441- 
445  of  the  text  are  quoted  as  proper 
statements  of  the  established  doc- 
trines in  Johnson  v.  Cook,  24  Wash. 
274,  04  Pac.  729. 

Special  rules. —  If  a  stipulation  is 
held  to  be  for  liquidated  damages, 
the  plaintiff  need  not  prove  that  he 
has  suffered  any  damage.  Sanford 
T.  First  Nat.  Bank,  94  Iowa,  680,  63 
N.  W.  459 ;  Little  v.  Banks,  85  N.  Y. 
259.  Nor  can  the  defendant  show 
that  the  actual  damage  was  less  than 
the  stipulated  amount,  it  being  con- 
ceded by  the  court  that  the  provi- 
sion is  for  liquidated  damages.  May 
V.  Crawford,  150  Mo.  504,  51  S.  W. 
693.  And  of  course  in  such  a  case 
the  plaintiff  cannot  recover  more 
than  the  stipulated  amount.  Morri- 
son V.  Ashburn  (Tex.  Civ.  App.),  21 
S.  W.  993;  Darrow  v.  Cornell,  12 
App.  Div.  604,  42  N.  Y.  Supp.  1081; 
Smith  V.  Vail,  53  App.  Div.  628,  65 
N.  Y.  Supp.  834.  If  the  amount 
named  in  the  contract  be  regarded  as 
liquidated  damages,  it  forms  the 
meaHure  of  damages,  and  the  jury 
are  confined  to  it.  Ilenncssy  v.  Metz- 
gi-r,  152  HI.  505,  38  N.  E.  1058,  43 
Am.  St.  Rep.  267.  It  has  been  inti- 
mated that  where  the  sum  named  as 


liquidated  damages  is  shown  to  bear 
no  reasonable  proportion  to  the  ac- 
tual, only  actual  damages  can  be- 
recovered.  Collier  v.  Betterton, 
(Tex.)  29  S.  W.  468.  In  such  a 
case,  however,  the  provision  is  really 
a  penalty,  as  we  have  seen  before. 
If  it  does  not  appear  unreasonable, 
the  stipulated  sum  will  be  held  to  be 
the  measure  of  damage.  Halff  v. 
O'Connor,  14  Tex.  Civ.  App.  191,  37 
S.  W.  238.  The  rule  is  stated  by  the 
supreme  court  of  Nebraska,  in  the 
syllabus  to  Camp  v.  Pollock,  45  Neb. 
771,  64  N.  W.  231,  as  follows: 
"  Where  damages  are  liquidated,  and 
there  is  no  conflict  of  evidence  as  to 
their  amount,  the  court  may  direct 
the  jury  as  to  the  precise  amount, 
and  not  leave  it  to  the  assessment  of 
the  jury."  Article  1934  of  the  Re- 
vised Civil  Code  of  Louisiana  pro- 
vides :  "  When  the  parties  by  their 
contract  have  determined  the  sum 
that  shall  be  paid  as  damages  for 
its  breach,  the  creditor  must  recover 
that  sum,  but  is  not  entitled  to  more. 
But  when  the  contract  is  executed  in 
part,  the  damages  agreed  on  by  the 
parties  may  be  reduced  to  the  loss 
really  suffered  and  the  gain  of  which 
the   party   has  been   deprived,  unless 


749  CONCERNING   PENAL,TIES    AND    FORFEITURES.  §  446 

lieve  the  party  who  has  thus  bound  himself  against 
a  penalty,  or  will  restrain  its  enforcement  against  him  at 
law,  it  will  not,  on  the  other  hand,  pennit  such  party 
to  resist  a  specific  performance  of  the  contract  by 
electing  to  pay  the  penalty.  Y/here  a  person  has  agreed 
to  do  a  certain  act,  or  to  refrain  from  doing  a  certain 
act,  and  has  added  a  penalty  for  the  purpose  of  securing 
a  performance,  a  court  of  equity  will,  if  the  contract  is 
otherwise  one  which  calls  for  its  interposition,  compel  the 
party  to  specifically  perform,  or  restrain  him  from  com- 
mitting the  act,  as  the  case  may  be^  notwithstanding  the 
penalty.  If  the  sum  stipulated  to  be  paid  is  really  a  pen- 
alty, the  party  will  never  be  allowed  to  pay  it,  and  then 
treat  such  pajTnent  as  a  sufficient  ground  for  refusing  to 
perform  his  undertaking.^  *    Where,  however,  the  creditor 

1  French  v.  Macale,  2  Dru.  &  War.  274;  Howard  v.  Hopkins,  2  Atk.  371; 
Chilliner  v.  Chilliner,  2  Yes.  528;  City  of  London  v.  Pugh,  4  Brown  Pari.  C, 
Tomlins's  ed.,  395;  Hardy  v.  Martin,  1  Cox,  26;  Logan  v.  Wienholt,  1  Clark 
&  F.  611,  7  Bligh,  N.  S.,  1,  49,  50;  Fox  v.  Scard,  33  Beav.  327;  Hobson  v. 
Trevor,  2  P.  Wms.  191;  Kennedy  v.  Lee,  3  Mer.  441,  450;  Prebble  v.  Boghurst, 
1  Swanst.  309;  Jeudwine  v.  Agate,  3  Sim.  120,  141;  Butler  v.  Powis,  2  Coll. 
C.  C.  156;  Jones  v.  Heavens,  L.  R.  2  Ch.  Div.  636;  In  re  Dagenham  Dock  Co., 
L.  R.  8  Ch.  1022 ;  Ewins  v.  Gordon,  49  N.  H.  444 ;  Gillis  v.  Hall,  7  Phila.  422,  2 
Brewst.  342;  Dooley  v.  Watson,  1  Gray,  414;  Hooker  v.  Pynchon,  8  Gray,  550; 
Fisher  v.  Shaw,  42  Me.  32;  Hull  v.  Sturdivant,  46  Me.  34;  Dailey  v.  Lichfield, 
10  Mich,  29 ;  Whitney  v.  Stone,  23  Cal.  275 ;  Dike  v.  Green,  4  R.  I.  288,  295. 
In  French  v.  Macale,  2  Dru.  &  War.  274,  Lord  St.  Leonards  clearly  stated  this 
•doctrine:  "  The  general  rule  of  equity  is,  that  if  a  thing  be  agreed  upon  to  be 
done,  though  there  is  a  penalty  annexed  to  secure  its  performance,  yet  the  very 
thing  itself  must  be  done.  If  a  man,  for  instance,  agrees  to  settle  an  estate, 
and  executes  his  bond  for  six  hundred  pounds  as  a  security  for  the  per- 
formance of  his  contract,  he  will  not  be  allowed  to  pay  the  forfeit  for  his 
bond,    and    avoid    his    agreement,    but   he    will    be    compelled    to    settle    the 

there  has  been  an  express  agreement  133  Ala.  331,  32  South.   129,  it  was 

that  the   sum   fixed  by   the   contract  held   that   a   court   is    authorized   to 

shall  be  paid  even  on  a  partial  breach  predicate  its  finding  upon  the  stipu- 

of    the    agreement."      But    in    cases  lated   amount,   even    though    it   be   a 

where    this    statute    applies,   the    de-  penalty,  in  the  absence  of  other  evi- 

fendant  must  affirmatively  establish,  dence. 

not  only  his  right  to  a  reduction,  but  (a)  National   Prov.   Bank   v.   Mar- 

the   extent   of  the   reduction.      Gold-  shall,  L.  R.  40  Ch.  Div.  1 12 ;  Amanda 

man  v.  Goldman,  25   South.   555,  51  Consol.   G.  M.  Co.   v.   People's   I\I.   Jb 

La.   Ann.   761.     In   Elston  v.   Roop,  M.  Co.,  28  Colo.  251,  64  Pac,  218. 


§  447  EQUITY    JUKISPRUDENCE.  750 

party  in  sucli  a  contract  has  elected  to  proceed  at  law, 
and  has  recovered  a  judgment  for  damages,  he  cannot  af- 
tei'wards  come  into  a  court  of  equity,  and  obtain  a  spe- 
cific performance;  he  cannot  have  the  remedy  given  by 
both  courts.^ 

§  447.  Otherwise  with  Liquidated  Damages. —  Where,  how- 
ever, the  parties  to  an  agreement  have  added  a  provi- 
sion for  the  payment,  in  case  of  a  breach,  of  a  certain 
sum  which  is  truly  liquidated  damages,  and  not  a  pen- 
alty,—  in  other  words,  where  the  contract  stipulates  for 
one  of  two  things  in  the  alternative,  the  doing  of  certain 
acts,  or  the  payment  of  a  certain  amount  of  money  in  lieu 
thereof, —  equity  will  not  interfere  to  decree  a  specific 
performance  of  the  first  alternative,  but  will  leave  the 
injured  party  to  his  remedy  of  damages  at  law.^  *     This 

estate  in  specific  performance  of  his  agreement.  So  if  a  man  covenants 
to  abstain  from  doing  a  certain  act,  and  agrees  that  if  he  do  it  he  will 
pay  a  sum  of  money,  it  would  seem  that  he  will  be  compelled  to  abstain 
from  doing  that  act;  and  just  as  in  the  converse  case,  he  cannot  elect  to- 
break  his  agreement  by  paying  for  his  violation  of  the  contract."  In  Dooley  v. 
Watson,  1  Gray,  414,  the  doctrine  was  laid  down  in  equally  plain  terms  by 
Shaw,  C.  J. :  "  Courts  of  equity  have  long  since  overruled  the  doctrine  that  a 
bond  for  the  payment  of  money,  conditioned  to  be  void  on  the  conveyance  of 
land,  is  to  be  treated  as  a  mere  agreement  to  pay  money.  When  the  penalty  ap- 
pears to  be  intended  merely  as  a  security  for  the  performance  of  the  agreement, 
the  principal  object  of  the  parties  will  be  carried  out." 

2  Fox  V.  Scard,  33  Beav.  327,  per  Sir  J.  Romilly,  M.  R. 

1  French  v.  Macale,  2  Dru.  &  War.  269;  Howard  v.  Hopkins,  2  Atk.  371; 
Jones  v.  Green,  3  Younge  &  J.  298;  Coles  v.  Sims,  5  De  Gex,  M.  &  G.  1 ;  Sainter 
V.  Ferguson,  1  Macn.  &  G.  280;  Rolfe  v.  Peterson,  2  Brown  Pari.  C.  436;  Wood- 
ward V.  Gyles,  2  Vern.  119;  Magrane  v.  Archbold,  1  Dow,  107;  Ranger  v.  Great 
Western  R'y  Co.,  5  H,  L.  Cas.  73;  Shicll  v.  McNit,  9  Paige,  101;  St.  Mary's 
Church  V.  Stockton,  9  N.  J.  Eq.  520;  Bodine  v.  Glading,  21  Pa.  St.  50,  59  Am. 
Dec.  749 ;  Iloldcman  v.  Jennings,  14  Ark.  329 ;  Skinner  v.  Dayton,  2  Johns.  Ch. 
526;  City  Bank  of  Baltimore  v.  Smith,  3  Gill  &  J.  265;  Jaquith  v.  Hudson,  &• 
Mich.  123;  Hahn  v.  Concordia  Soc,  42  Md.  460. 

(a)  Quoted  in  Amanda  Consol.  G.  of  liquidated  damages  in  case  of  fail- 
M.  Co.  V.  People's  M.  &  M.  Co.,  28  ure  to  perform  does  not  prevent  a 
Colo.  251,  04  Pac.  218.  But  see  Ly-  court  of  equity  from  decreeing  spe- 
man  v.  Gedney,  114  III.  388,  55  Am.  cific  performance.  It  is  only  where 
Rep.  871,  29  N.  E.  282,  where  the  the  contract  stipulates  for  one  of  two- 
court  «ai<l :  "The  mere  fact  that  a  things  in  the  alternative  —  the  per- 
contruct   Htipulates   for   the   payment  formance  of  certain  acts,  or  the  pay 


751  CONCERNING  PENALTIES   AND   FORFEITURES.       §§  448,  449 

is  one  reason  among  many  why  courts  of  equity  incline 
strongly  to  construe  such  stipulations  as  providing  for  a 
penalty  rather  than  for  liquidated  damages. 

§  448.  Forfeiture. —  This  subject  includes  two  entirely 
*3istinct  questions,  namely:  When  will  equity  interfere  to 
aid  the  defaulting  party,  and  to  relieve  against  a  forfeiture 
by  setting  it  aside,  or  by  allowing  him  to  go  on  and  per- 
form as  though  it  had  not  occurred,  or  by  restraining 
the  other  party  from  enforcing  it?  and  when  will  equity 
interfere  at  the  suit  of  the  creditor  party,  and  by  its  decree 
actively  enforce  and  carry  into  effect  the  forfeiture  against 
the  one  in  default?  The  former  of  these  questions  will 
be  examined  first  in  order. 

§  449.  When  Equity  will  Relieve." —  It  has  been  repeatedly 
assumed  and  asserted  by  numerous  judicial  dicta,  and  the 
statement  seems  to  have  been  accepted  by  many  text-writ^ 
ers  as  correct,  that  a  court  of  equity  is  governed  by  the 
same  doctrine  with  respect  to  relief  against  forfeitures 
and  against  penalties.  This  is  true,  perhaps,  when  con- 
sidered simply  as  the  announcement  of  a  rule  in  its  most 

ment  of  a  certain  amount  of  money  "  the  sum  of  $1,500  liquidated  dam- 
in  lieu  thereof  —  that  equity  will  not  ages."  In  all  cases  where  a  party 
decree  a  specific  performance  ol  the  relies  on  the  payment  of  liquidated 
first  alternative."  See  also  Augusta  damages  as  a  discharge,  it  must 
Steam  Laundry  Co.  v.  Debow,  US  Me.  clearly  appear  that  they  were  to  be 
496,  57  Atl.  845.  In  Phoenix  Ins.  Co.  paid  and  received  absolutely  in  lieu 
V.  Continental  Ins.  Co.,  87  N.  Y.  400,  of  performance:  Higbie  v.  Farr,  28 
the  court  said:  "If  the  primary  in-  Minn.  439,  10  N.  W.  592.  In  Cali- 
tention  was  that  the  very  thing  cov*  fornia  a  contract  otherwise  proper 
enanted  should  be  done,  then  the  sum  to  be  specifically  enforced  may  be 
named  is  in  the  nature  of  a  penalty  thus  enforced  though  the  damages 
to  secure  the  performance  of  the  are  liquidated  and  the  party  in  de- 
principal  thing;  and  it  can  make  fault  is  willing  to  pay  the  same: 
no  difference  in  the  construction  of  Cal.  Civil  Code,  §  3389.  In  Solomon 
the  covenant  whether  damages  for  v.  Diefenthal,  46  La.  Ann.  897,  15 
non-performance  are  left  to  be  ascer-  South.  183,  it  was  held  that  a  plain- 
tained  by  an  issue  quantum  damnifi-  tifT  cannot  recover  liquidated  dam- 
catus  or  the  parties  themselves  con-  ages  and  have  injunctive  relief  as 
clusively  settle  the  amount."    In  this  well. 

case  a  party  agreed  not  to  build  on  (a)  This  section  is  cited  in  Man- 
certain  premises,  and  "  for  a  viola-  hattan  Life  Ins.  Co,  v.  Wright  (C. 
tion  of  the  covenant"  agreed  to  pay  C.  A.),  126  Fed.  82. 


§  450  EQUITY   JURISPEUDENCE.  752 

general  form;  but  in  its  practical  application  it  is  subject 
to  such  important  exceptions  and  limitation  that  there  is, 
in  fact,  a  marked  distinction  between  forfeitures  and  pen- 
alties, in  the  view  with  which  they  are  respectively  re- 
garded and  dealt  with  by  equity.  We  have  seen  that  wher- 
ever a  certain  sum  is  stipulated  to  be  paid  as  security 
for  the  performance  of  some  act  which  is  capable  of  pecu- 
niary measurement,  so  that  the  compensation  in  the  nature 
of  damages  for  a  non-performance  can  be  ascertained  with 
reasonable  exactness,  the  certain  sum  is  taken  to  be  a  pen- 
alty, and  that  courts  strongly  lean  in  favor  of  a  construc- 
tion which  shall  make  it  a  penalty,  so  that  it  may  be  dis- 
regarded. This  is  not  universally  true,  is  not  the  practical 
test  in  case  of  forfeitures,  although,  perhaps,  the  court  may 
use  the  same  general  formula  of  words  as  applicable  to  both 
instances. 

§  450.  Ground  and  Extent  of  Such  Relief. —  It  is  well  set- 
tled that  where  the  agreement  secured  is  simply  one  for 
the  payment  of  money,  a  forfeiture  either  of  land,  chat- 
tels, securities,  or  money,  incurred  by  its  non-perform- 
ance, will  be  set  aside  on  behalf  of  the  defaulting  party, 
or  relieved  against  in  any  other  manner  made  necessary 
by  the  circumstances  of  the  case,  on  payment  of  the  debt, 
interest,  and  costs,  if  any  have  accrued,  unless  by  his  in- 
equitable conduct  he  has  debarred  himself  from  the  reme- 
dial right,  or  unless  the  remedy  is  prohibited,  under  the 
special  circumstances  of  the  case,  by  some  other  controlling 
doctrine  of  equity.^ '    Where  the  stipulation,  however,  is 

1  Hill  V.  Barclay,  16  Ves.  403,  405,  18  Ves.  58,  60;  Reynolds  v.  Pitt,  19  Vea, 
140;  Wadman  v.  Calcraft,  10  Ves.  68,  69;  Bowser  v.  Colby,  1  Hare,  128; 
Gregory  v.  Wilson,  9  Hare,  G83;  Bracebridge  v,  Buckley,  2  Price,  200; 
Skinner   v.   Dayton,   2   Johns.    Ch.   535,    17   Jolins.   339;    Hagar   ▼.   Buck,   44 

(a)  Quoted  in  Tibbetts  v.  Gate,  66  See   Noyes   v.   Anderson,    124   N.   Y. 

N.    H.    550,    22    Atl.    559,    and   cited  175,  26  N.  E.   316,  21  Ani.  St.  Rep. 

generally  in  Attala  Min.  &  Mfg.  Co.  657   (citing  §  450  of  the  text)  ;  Sun- 

▼.  Winchester,  102  Ala.  184,  14  South.  day  Lake  Min.  Co.  v.  Wakefield,  72 

565;     Manhattan     Life     Ins.     Co.     v.  Wis.    204,    39    N.    W.    136;    Jones   V. 

Wright,    (C.    C.    A.),    126    Fed-    82.  Beimet,  39  Ky.   (9  Dana)  333. 


753  CONCERNING   PENALTIES    AND    FORFEITURES.  §  450 

intended  to  secure  the  performance  or  non-performance 
of  some  act  in  pais,  it  is  impossible  to  lay  down  any  such 
general  rule  with  which  all  the  classes  of  decisions  shall 
harmonize.  It  is  certain  that  if  the  act  is  of  such  a  nature 
that  its  value  cannot  be  pecuniarily  measured,  if  the  com- 
pensation for  a  default  cannot  be  ascertained  and  fixed  with 
reasonable  precision,  relief  against  the  forfeiture  incurred 
by  its  non-performance  will  not,  under  ordinary  circum- 
stances, be  given.^  "  The  affirmative  of  this  proposition 
cannot  be  stated  as  a  rule  with  the  same  generality.  It 
has,  indeed,  been  said  that  equity  would  relieve  against 
forfeitures  in  all  cases  where  compensation  can  be  made; 
but  this  is  clearly  incorrect.  It  is  well  settled  that  a  court 
of  equity  will  not,  under  ordinary  circumstances,  set  aside 
forfeitures  incurred  on  the  breach  of  many  covenants  con- 
tained in  leases,  or  of  stipulations  in  other  agreements, 
although  the  compensation  for  the  resulting  injury  could 
be  ascertained  without  difficulty;*   and  on  the  other  hand, 

Vt.  285,  8  Am.  Rep.  368;  Hancock  v.  Carlton,  6  Gray,  39;  Carpenter  v. 
Westcott,  4  R.  I.  225;  Thompson  v.  Whipple,  5  R.  I.  144;  Walker  v.  Wheeler, 
2  Conn,  229;  Hart  v.  Homiler,  20  Pa.  St.  348;  Bright  v.  Rowland,  3  How. 
(Miss.)  398;  Moore  v.  Platte,  8  Mo.  467;  Walling  v.  Aiken,  3  McMull.  Eq. 
1;  Royan  v.  Walker,  1  Wis.  527;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct.  215, 
62  N.  Y.  486;  Orr  v.  Zimmerman,  63  Mo.  72;  Palmer  v.  Ford,  70  HI.  369. 

2  Gregory  v.  Wilson,  9  Hare,  683;  Hills  v.  Rowland,  4  De  Gex,  M.  &  G.  430; 
Croft  V.  Goldsmid,  24  Beav.  312;  Nokes  v.  Gibbon,  3  Drew.  618;  White  v.  War- 
ner, 2  Mer.  459 ;  Skinner  v.  Dayton,  2  Johns.  Ch.  526,  535 ;  Baxter  v.  Lansing, 
7  Paige,  350;  Drenkler  v.  Adams,  20  Vt.  415;  Clarke  v.  Drake,  3  Chand.  253; 
Gregg  V.  Landis,  19  N.  J.  Eq.  850,  21  N.  J.  Eq.  494,  511;  Ottawa  Plank  Road 
Co.  V.  Murray,  15  111.  336. 

3  White  V.  Warner,  2  Mer.  459 ;  Eaton  v.  Lyon,  3  Ves.  692,  693 ;  Hill  v.  Bar- 
clay, 16  Ves.  403,  405,  18  Ves.  58-64;  Rolfe  v.  Harris,  2  Price,  206,  note;  Brace- 

(b)  In  Klein  v.  New  York  Life  liability  in  default  of  punctual  pay- 
Ins.  Co.,  104  U.  S.  88,  it  was  held  ment.  No  compensation  can  be  made 
that  equity  will  not  relieve  against  a  a  life  insurance  company  for  the  gen- 
forfeiture  of  a  life  insurance  policy  eral  want  of  punctuality  among  its 
for  non-payment  of  premiums.  The  patrons."  See  also  Iowa  Life  Ins. 
court  said:  "If  the  payment  of  the  Co.  v.  Lewis,  187  U.  S.  335,  23  Sup. 
premiums,  and  their  payment  on  the  Ct.  126 ;  Knickerbocker  Life  Ins.  Co. 
day  they  fall  due,  are  of  the  essence  v.  Dietz,  52  Md.  16;  Manhattan  Life 
of  the  contract,  so  is  the  stipulation  Ins.  Co.  v.  Wright,  (0.  C.  A.),  128 
for  the  release  of  the  company  from  Fed.  82. 

Vol.  1  —  48 


§  451  EQUITY   JURISPRUDENCE.  754 

the  relief  is  often  given,  as  will  appear  from  subsequent 
paragraphs,  where  the  agreement  secured  by  the  clause 
of  forfeiture  is  not  one  expressly  and  simply  for  the  pay- 
ment of  money.  The  following  proposition  seems  to  be  a 
conclusion  fairly  drawn  from  all  the  decisions  upon  the 
subject,  and  to  be  an  accurate  and  comprehensive  state- 
ment of  the  general  doctrine  as  settled  by  them,  namely: 
In  the  absence  of  special  circumstances  giving  the  default- 
ing party  a  higher  remedial  right,  a  court  of  equity  will 
set  aside  or  otherwise  relieve  against  a  forfeiture,  both 
when  it  is  incurred  on  the  breach  of  an  agreement  expressly 
and  simply  for  the  payment  of  money,  and  also  on  the 
breach  of  an  agreement  of  which  the  obligation,  although 
indirectly,  is  yet  substantially  a  pecuniary  one.^ 

§  451.  Forfeiture  Occasioned  by  Accident,  Fraud,  Surprise, 
or  Ignorance. —  There  are,  as  intimated  above,  special  cir- 
cumstances which  will  entitle  a  defaulting  party  to  relief 
against  a  forfeiture  in  cases  where  otherwise  it  would  not 
be  granted.  Although  the  agreement  is  not  one  measur- 
able by  a  pecuniary  compensation,  still,  if  the  party  bound 
by  it  has  been  prevented  from  an  exact  fulfillment,  so  that 
a  forfeiture  is  incurred,  by  unavoidable  accident,  by  fraud, 
by  surprise,  or  by  ignorance,  not  willful,  a  court  of  equity 
will  irterpose  and  relieve  him  from  the  forfeiture  so  caused, 
upon  his  maldng  compensation,  if  necessary,  or  doing  every- 
thing else  within  his  power.^ "    Also,  in  the  same  class  of 

bridge  v.  Buckley,  2  Price,  200;  Green  v.  Bridges,  4  Sim.  96;  Hills  v.  Rowland, 
4  De  Gex,  M.  &  G.  430;  Germantown,  etc.,  R'y  v.  Fitler,  GO  Pa.  St.  131,  100 
Am.  Pec.  540;  Dunklee  v.  Adams,  20  Vt.  415,  50  Am.  Dec.  44. 

4  This  mode  of  formulating  the  doctrine  is  in  harmony  with  all  the  decisions, 
although  it  does  not  go  as  far  as  some  of  tlie  dicta.  See  the  cases  cited  in  the 
preceding  notes. 

1  Many  of  the  cases  under  this  doctrine  are  those  of  covenants  in  leases,  but 

(a)  Cited  with  approval  in  North  plaintiff    agreed    not    to    foreclose    a 

Jersey  St.  R'y  Co.  v.  Inhabitants  of  mortgage  during  defendant's  lifetime, 

Tp.   of   South   Orange,   58   N.   J.   Eq.  provided    defendant    should    pay    all 

6.3,   4'A   At).   53;    Noycs  v.   Anderson,  taxes  within  thirty  days  from  time  of 

124  N.  Y.  175.  20  N.  E.  310,  21  Am.  accrual.     Defendant  did  not  pay  one 

St.  Kep.  067.     In  the  latter  case  the  assessment   in   time   because  she   did 


755  CONCERNING    PENALTIES    AND    FORFEITURES.  §  45t' 

cases,  and  upon  the  same  equitable  groundfe,  if  there  has 
been  a  breach  of  the  agreement  sufficient  to  cause  a  for- 
feiture,  and  the  partj^  entitled  thereto,  either  expressly  or  by 

the  doctrine,  of  course,  extends  to  all  agreements :  t>  Eaton  v.  Lyon,  3  Ves.  693, 
per  Lord  Alvanley;  Hill  v.  Barclay,  18  Vea.  58,  62,  per  Lord  Eldon;  Hannam. 
V.  South  London  Water  Co.,  2  Mer.  61 ;  Bamford  v.  Creasey,  3  Giflf.  675 ;  Wing- 
V.  Harvey,  5  De  Gex,  M.  &  G.  265 ;  Duke  of  Beaufort  v.  Neeld,  12  Clark  &  F. 
248 ;  Bridges  v,  Longman,  24  Beav.  27 ;  Meek  v.  Carter,  6  Week.  Rep.  852.  In 
Hill  V.  Barclay,  18  Ves.  58,  Lord  Eldon  was  very  strongly  opposed  to  granting 
relief  in  ordinary  cases,  but  he  expressly  says  that  his  reasoning  and  conclu- 
sions do  not  apply  to  cases  of  accident,  surprise,  fraud,  etc. ;  as,  for  example,, 
the  forfeiture  arising  from  a  lessee's  breach  of  a  covenant  to  repair,  the  effect 
of  the  weather  in  preventing  him,  or  if  a  permissive  want  of  repair,  the  land- 
lord standing  by  and  looking  on  and  not  objecting.  W^ing  v.  Harvey,  5  De  Gex,, 
M.  &  G.  265,  is  a  good  illustration.  A  life  policy  contained  a  condition  making 
it  void  if  the  assured  went  beyond  Europe  without  a  license.  The  assured  as- 
signed the  policy  and  took  up  his  residence  in  Canada.  The  assignee,  on  pay- 
ing the  annual  premium  to  an  agent  of  the  insurance  company,  informed  hint 
that  the  assured  was  residing  in  Canada.  The  agent  answered  that  this  would 
not  avoid  the  policy,  and  continued  to  receive  the  premiums  without  objeetioQ 
until  the  assured  died.  Although  no  license  had  been  given,  the  lord  justice 
held  that  the  company  could  not  insist  upon  the  forfeiture ;  the  assignee  had 
been  misled  by  the  company's  agent,  and  to  enforce  the  forfeiture  would  be  fti 
"  surprise,"  even  if  not  an  actual  fraud. 

not  know  of  it,  but  she  eventually  lessee  agreed  to  keep  the  property  in^ 
paid.  It  was  held  that  equity  would  sured  so  that  the  loss  would  be  pay- 
relieve  her  from  the  forfeiture.  In  able  to  the  lessor.  An  assignee  re- 
Tibbets  v.  Gate,  66  N.  H.  550,  22  Atl.  newed  the  insurance,  but  through 
559,  a  forfeiture  was  provided  for  in  mistake  the  loss  was  not  made  pay- 
case  of  failure  to  pay  all  taxes.  The  able  to  the  lessor.  It  was  held  that; 
court  held  that  relief  would  be  equity  would  relieve  from  the  for- 
awarded  against  a  forfeiture  incurred  feiture. 

for   non-payment  of  taxes   of  which  That  a  lessee's  mere  forgetfulnes* 

the  devisee  was  ignorant.     In  Lundin  of  a  covenant  in  his  lease  is  not  a 

V.  SchoeflFel,  167  Mass.  465,  45  N.  E.  mistake  which  can  be  relieved  against, 

933,  there  was  a  provision  for  a  for-  see    Barrow    v.    Trustees     [1891],    1 

feiture  of  a  lease  in  case  of  noise  in  Q.  B.  417. 

making  repairs  which  should  disturb  See    also,    in    general,    Kopper    v; 

the   performance   in   a  theater.      The  Dyer,  59  Vt.  477,  12  Atl.  4,  59  Am. 

court  found  that  the  noise  made  was  Rep.    742;    Hulett   v.    Fairbanks,    40 

slight,  lasted  only  a  minute,  and  that  Ohio    St.    233     (fraud)  ;     Travelers* 

plaintiff   did   not   know   that   a   per-  Ins.  Co.  v.  Brown    (Ala.),  35  South, 

formance  was  going  on  at  the  time.  463;   and  §§  826,  833,  post. 

Injunctive  relief  was  given  "  on  the  (*>)   Cited  to  this  effect  in   Hukill 

ground  of  accident  or  mistake."     In  v.  Myers,  36  W.  Va.  639,   15  S.  E. 

Mactier  v.  Osborn,  146  Mass.  399,  15  151. 
N.   E.    641,   4   Am.    St.   Rep.    323,   a 


§  452  EQUITY   JURISPRUDENCE.  756 

his  conduct,  waives  it  or  acquiesces  in  it,  he  will  be  pre- 
cluded from  enforcing  the  forfeiture,  and  equity  will  aid 
the  defaulting  party  by  relieving  against  it,  if  necessary.^  "^ 
For  a  like  reason  a  court  of  equity  may  set  aside  or  dis- 
regard a  forfeiture  occasioned  by  a  failure  to  comply  with 
the  very  letter  of  an  agreement  when  it  has  nevertheless 
been  substantially  performed.^  ^ 

§  452.  Forfeiture  Willful  or  through  Negligence. —  While  a 
defaulting  party  may  thus  acquire  a  right  to  the  equi- 
table relief  from  the  conduct  of  the  other  party,  he  may 
also  lose  the  right,  which  otherwise  would  have  existed, 
as  a  consequence  of  his  own  conduct.  In  a  case  where  an 
agreement  creates  a  mere  pecuniary  obligation,  so  that  a 
forfeiture  incurred  by  its  breach  would  ordinarily  be  set 
aside,  a  court  of  equity  will  refuse  to  aid  a  defaulting 
party,  and  relieve  against  a  forfeiture,  if  his  violation 
of  the  contract  was  the  result  of  gross  negligence,  or  was 
willful  and  persistent.  He  who  asks  help  from  a  court 
of  equity  must  himself  be  free  from  inequitable  conduct 

2  In  many  such  cases  there  would  be  no  need  of  an  appeal  to  equity,  since 
the  breach  and  forfeiture  would  be  waived  at  law.  Most  of  the  decided  cases 
have  arisen  from  breaches  of  covenants  in  leases,  but  the  rule  applies  as  well 
to  all  other  agreements:  Bridges  v.  Longman,  24  Beav.  27;  Croft  v.  Lumbly, 
5  El.  &  B.  648;  Hughes  v.  Metropolitan  R'y  Co.,  L.  R.  2  H.  L.  439;  Wing  v. 
Harvey,  5  De  Gcx,  M.  &  G.  265;  Lilly  v.  The  Fifty  Associates,  101  Mass.  432; 
Helme  v.  Philadelphia  Ins.  Co.,  61  Pa.  St.  107,  100  Am.  Dec.  621  j  Gregg  V. 
Landis,  19  N.  J.  Eq.  35G,  21  N.  J.  Eq.  494,  507. 

8  Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368. 

(c)  See    Robinson    v.    Cheney,    17  Colo.    App.    287,    38    Pac.    603,    one 

Neb.   673,  24  N.   W.  378;     Hurst  v.  party  claimed  a   forfeiture   for   non- 

Thompson,    73    Ala.    158.      See    also  payment    of    an    installment   of    $17, 

ante,     §    439,    note.      In    Pokcgama  after    having    received    nearly    $300. 

Sugar   Pine  Lumber  Co.  v.  Klamath  There  was  some  dispute  as  to  whether 

River  L.  &,  I.  Co.,  96  Fed.  34,  a  lessor  the  $17  was  due.     The  court  granted 

allowed   the   lessee   to   spend   a  large  relief,   saying  that  "  courts,   in   such 

«um  of  money  on  the  property  after  cases,  do  not  look  complacently,  un- 

facts   sufficient   to    constitute    a    for-  der   such   circumstances,    upon    what 

/eiture  had  occurred.     The  court  held  might    be    a    technical    forfeiture    at 

that  the  forfeiture  was  waived.  law,  but  clearly  inequitable  in  a  case 

<d)  Thua,  in  Blilcy  v.   Wheeler,   5  of  this  kind," 


757 


CONCERNING   PENALTIES   AND   FORFEITURES. 


452 


with  respect  to  the  same  subject-matter.^ "  Having  thus 
exhibited  the  doctrine  in  its  general  form,  I  shall  briefly 
describe  the  most  important  instances  of  its  application^ 
namely:  to  conditions  and  covenants  in  leases;  to  condi- 
tions in  contracts  for  the  sale  of  land ;  to  particular  stipu- 
lations in  other  contracts;  to  the  forfeiture  of  shares  of 
stock;  and  to  forfeitures  created  by  statute. 

1  Hancock  v.  Carlton,  6  Gray,  39 ;  Clarke  v.  Drake,  3  Chand.  223 ;  Horsburg 
V.  Baker,  1  Pet.  236.  In  Hancock  v.  Carlton,  6  Gray,  39,  land  had  been  con- 
veyed, subject  to  certain  mortgages  which  the  grantee  assumed  to  pay,  and 
"  on  condition  that  the  grantor  should  be  indemnified  and  saved  harmless." 
This  condition  having  been  broken  and  a  forfeiture  thereby  incurred,  thfe 
grantee  brought  suit  in  equity  to  set  it  aside.  It  appeared  that  the  grantor 
had  been  compelled  by  due  process  of  law  to  pay  the  mortgages,  that  he  had 
duly  notified  the  grantee  (the  plaintiff)  of  these  legal  proceedings,  and  re- 
quired him  to  pay  the  mortgages,  but  the  plaintiff  had  refused  to  do  so.  UpoQ 
these  facts  it  was  held  that  the  plaintiff  was  not  entitled  to  relief  against  th& 
forfeiture  thus  occasioned,  although  in  refusing  to  pay  he  had  acted  under  a 
mistaken  view  as  to  his  own  liability.  It  may  be  doubted,  I  think,  whether 
the  court  did  not  push  the  doctrine  of  the  text  too  far,  since  the  breach  was- 
not  in  any  true  sense  willful. 


(a)  See  also  §  856,  note.  The  su- 
preme court  of  California  in  Parsons 
V.  Smilie,  97  Cal.  647,  32  Pac.  702,  in 
construing  section  3275  of  the  Civil 
Code,  held  that  "  willful  "  forfeiture 
simply  means  one  voluntarily  in- 
curred. In  that  case  an  estate  was 
forfeited  for  breach  of  condition  sub- 
sequent in  not  maintaining  a  lumber 
yard.  Relief  against  the  forfeiture 
was  denied.  In  N.  Y.  &  N.  E.  R.  R. 
Co.  V.  City  of  Providence,  16  R.  I. 
746,  19  Atl.  759,  a  city  had  granted 
to  a  railroad  certain  easements  upon 
condition  that  certain  land  was  to  be 
filled  in.  The  grantee  failed  to  per- 
form, whereupon  the  city  took  pos- 
session and  made  the  filling.  Tliirty 
years  later  relief  was  sought  on  the 
ground  that  the  city  could  be  com- 
pensated. Relief  was  refused.  The 
case  of  South  Penn  Oil  Co.  v.  Edgell, 
48  W.  Va.  348,  37  S.  E.  596,  86  Am. 
St.  Rep.  43,  seems  hardly  in  accord 
with  the  general  rule  as  laid  down 


in  the  text.  By  the  contract  Mrs. 
Edgell  was  entitled  to  certain  gas 
free,  and  in  case  of  breach  a  forfeit- 
ure was  provided  for.  The  officers  of 
the  oil  company  overlooked  this,  d«>- 
manded  payment,  and  upon  refusal' 
shut  oflF  the  supply.  Mrs.  Edgell  de- 
clared a  forfeiture^  whereupon  the 
company  sued  to  set  it  aside.  Speak- 
ing of  the  failure  to  observe  the  con- 
tract, the  court  said :  "  Tliis  was  a 
matter  of  plain  negliscnce  on  the 
part  of  some  of  the  officers  or  coun- 
selors of  the  appellees,  for  they  had 
possession  of  a  copy  of  the  contract, 
and  by  proper  diligence  could  hav« 
been  fully  informed  of  its  contents.'* 
"  The  breach  in  the  case  came  from 
a  negligent  mistake,  but  it  was  not 
willful  in  a  legal  sense.  To  be  so  ife 
must  be  knowingly  committed."  The 
court  held  that  relief  would  b(* 
granted  because  "  the  gas  was  a  ren- 
tal consideration  easily  ascertainabl? 
in  money."    See  monographic  note  on 


!%  453  EQUITY   JURISPRUDENCE.  758 

§  453.  Forfeitures  Arising  from  Covenants  in  Leases. — 
Wliere  a  lease  contains  a  condition  that  the  lessor  may 
re-enter  and  put  an  end  to  the  lessee's  estate,  or  even  that 
the  lease  shall  be  void,  upon  the  lessee's  failure  to  pay  the 
rent  at  the  time  specified,  it  is  well  settled  that  a  court  of 
•equity  will  relieve  the  lessee  and  set  aside  a  forfeiture  in- 
curred by  his  breach  of  the  condition,  whether  the  lessor 
has  or  has  not  entered  and  dispossessed  the  tenant.  This 
rule  is  based  upon  the  notion  that  such  condition  and  for- 
feiture are  intended  merely  as  a  security  for  the  payment  of 
money.^  ^ 

1  By  the  original  doctrine  of  equity,  the  relief  might  be  granted  within  any 
-reasonable  time  after  a  breach,  and  even  after  an  ejectment;  by  the  English 
statute,  the  suit  in  equity  must  be  brought  within  six  months  after  the  lessor 
has  recovered  a  judgment  in  an  action  of  ejectment:  Bowser  v.  Colby,  1  Hare, 
109,  128,  130-132;  Home  v.  Thompson,  1  Sausse  &  S.  615;  Hill  v.  Barclay,  16 
Ves.  403,  405,  18  Ves.  58-64;  Eaton  v.  Lyon,  3  Ves.  692,  693;  White  v.  War- 
•  mer,  2  Mer,  459;  Bracebridge  v,  Buckley,  2  Price,  200;  Reynolds  v.  Pitt,  19  Ves. 
140;  Atkins  v.  Chilson,  11  Met.  112;  Sanborn  v.  Woodman,  5  Cush.  360;  Stone 
^v,  Ellis,  9  Cush.  55;  Palmer  v.  Ford,  70  111.  369. 

If,  hovvever,  the  lessee  has  also  broken  other  covenants  besides  the  one  for 
Tent,  by  reason  of  which  he  would  be  liable  to  an  eviction,  and  against  which 
no  relief  could  be  given,  then  a  court  of  equity  will  not  set  aside  the  forfeiture 
incurred  by  a  violation  of  the  condition  concerning  rent,  since  such  relief 
"would  be  wholly  nugatory:  Bowser  v.  Colby,  1  Hare,  109;  Home  v.  Thomp- 
son, 1  Sausse  &  S.  615;  Wadman  v.  Calcraft,  10  Ves.  67;  Davis  v.  West,  12 
'Ves.  475;  Nokes  v.  Gibbon,  3  Drew.  693. 

the  subject  of  relief  from  forfeitures  security   for  the   future   payment  of 

in  86  Am.  St.  Eep.  48.  rent.     It  was  not  like  a  case  where 

(a)  Quoted  in   Sunday  Lake   Min.  the  omission  caused  a  present  injury 

Co.    V.    Wakefield,    72    Wis.    204,    39  or  increase  of  risk  to  the  lessors,  as 

N.  W.  136.     In  the  case  of  Lundin  v.  in  the  case  of  waste,  non-repair,  or 

SchoelTel,    167    Mass.   465,   45    N.    E.  non-insurance.   In  such  a  case  a  court 

933,  one  breach  consisted  in  the  ten-  of   equity   is   not   required   to   refuse 

ant's    not    fitting    up    the    premises  relief   against  a   forfeiture,  but   may 

promptly.    The  court  said :     "  If  the  look  into  the  circumstances,  and  de- 

lessee'a  failure  had  been  an  omission  termine  whether,  on  the  whole,  it  ia 

to   pay   rent   promptly   as   it  became  just  and  right  that  such  relief  should 

due,  it  is  plain  tliat  a  court  of  equity  be  granted." 

might  relievo  against  a  forfeiture  on  The  text  is  cited  in  Attala  Min.  & 

this  ground,  though  the  omission  wa^  ^Iff?-  Co.  v.  Winchester,  102  Ala.  184, 

tven  willful.     But  the  lessee's  failure  14  South.  665.     See,  also,  Johnson  v. 

In  this  case  was  merely  an  omission  Lehigh   Val.   Traction   Co.,   130   Fed. 

to  do  promptly  Bomething  which  was  032. 
I  only  useful  to  the  lessors  by  way  of 


759  CONCERNING   PENALTIES    AND    FORFEITURES.  §  454 

§  454.  Equity  will  not,  under  ordinary  circumstances, 
relieve  against  a  forfeiture  arising  from  the  breach  of  other 
covenants  contained  in  a  lease,  on  the  ground  that  no  exact 
compensation  can  be  made.  Among  these  covenants  for  a 
breach  of  which  no  relief  can  ordinarily  be  given  is  that 
to  repair  generally,  or  to  make  specific  repairs,  or  to  lay 
out  a  certain  sum  of  money  in  repairs  or  erections  within 
a  specified  time;*  the  covenant  to  insure;^  the  covenant 
not  to  assign  without  license  f  *  and  in  other  covenants 
of  a  special  nature.^"  It  should  be  observed,  however, 
that  in  all  cases  of  this  class  relief  may  be  given  when 
the  breach  was  the  result  of  fraud,  mistake,  accident,  sur- 

1  Gregory  v.  Wilson,  9  Hare,  683,  689;  Nokes  v.  Gibbon,  3  Drew.  681 ;  Hill  v. 
Barclay,  16  Ves.  403,  406,  18  Ves.  58,  61,  per  Lord  Eldon;  Bracebridge  v.  Buck- 
ley, 2  Price,  215;  Croft  v.  Goldsmid,  24  Beav.  312;  the  earlier  cases  of  Hack  v. 
Leonard,  9  Mod.  90,  per  Lord  Macclesfield,  and  Sanders  v.  Pope,  12  Ves.  282, 
290,  per  Lord  Erskine,  which  laid  down  a  different  rule,  have  been  overturned 
by  the  subsequent  authorities  above  cited. 

2  Gregory  v.  Wilson,  9  Hare,  683;  Green  v.  Bridges,  4  Sim.  96;  Reynolds  v. 
Pitt,  19  Ves.  134;  Bracebridge  v.  Buckley,  2  Price,  218;  White  v.  Warner,  2 
Mer.  459;  Havens  v.  Middleton,  10  Hare,  641.  An  English  statute  authorizes 
the  court  to  relieve  against  forfeiture  incurred  by  a  breach  of  a  covenant  to  in- 
sure, in  certain  specified  cases;  22  &  23  Vict.,  chap.  35,  §§  4,  6,  7,  8. 

3  Hill  V.  Barclay,  18  Ves.  36,  per  Lord  Eldon;  Wafer  v.  Mocate,  9  Mod.  112; 
Wadman  v.  Calcraft,  10  Ves.  67;  Lovat  v.  Lord  Ranelagh,  3  Ves.  &  B.  24; 
Bracebridge  v.  Buckley,  2  Price,  200,  221 ;  Baxter  v.  Lansing,  7  Paige,  350. 
But  in  Grigg  v.  Landis,  21  N.  J.  Eq.  494,  514,  it  was  held  that  a  clause  in  a 
contract  of  sale  that  the  vendee  should  not  assign  did  not  come  within  the 
meaning  and  operation  of  this  rule. 

•*  To  cultivate  the  land  in  a  husbandlike  manner:  Hills  v.  Rowland,  4  De 
Gex,  M.  &  G.  430;  not  to  carry  on  a  particular  trade:  Maeher  v.  Foundling 
Hospital,  1  Ves.  &  B.  187 ;  not  to  sulTer  persons  to  use  a  private  way  over  part 
of  the  land  leased:     Descarlett  v.  Dennett,  9  Mod.  22, 

(a)  See  also  Barrow  v.  Trustees  alienation  of  property.  In  such  cases 
[1891],  1  Q.  B.  417  ( covenant  against  as  this,  equity  follows  the  law.  In 
underletting).  general,    equity   abhors   a    forfeiture, 

(b)  In  Monroe  v.  Armstrong,  96  but  not  when  it  works  equity  and 
Pa.  St.  307,  there  was  a  covenant  for  protects  a  landowner  from  the  laches 
forfeiture  in  case  of  delay  in  working  of  a  lessee  whose  lease  is  of  no  value 
under  an  oil  lease.  The  court  said:  till  developed,  except  for  a  purpose 
"  Forfeiture  for  non-development  or  foreign  to  the  agreement."  See  also 
<lelay,  is  essential  to  private  and  pub-  Hukill  v.  Giiffey,  37  W.  Va.  425,  16 
lie  interests  in  relation  to  the  use  and  S.  E.  544. 


§  455  EQUITY   JURISPRUDENCE.  760' 

pnse,  and  the  like,  or  was  acquiesced  in  or  waived  by  the 
lessor.^ 

§  455.  From  Contracts  for  the  Sale  of  Land. —  Where  an 
ordinary  contract  for  the  sale  of  land  is  so  drawn  that 
the  vendee's  estate,  interest,  and  rights  under  it  are  liable 
to  be  forfeited  and  lost  upon  his  failure  to  pay  the  price 
at  the  tijne  specified,  the  question  Avhether  equity  will  re- 
lieve him  ought  to  be  a  very  plain  and  simple  one;  but 
in  the  face  of  the  authorities,  it  is  impossible  to  be  an- 
swered in  any  general  and  certain  manner.  To  examine 
this  question  in  detail  would  require  me  to  anticipate  the 
full  discussion  of  the  doctrine  concerning  time  as  the  es- 
sence of  contracts  in  their  specific  enforcement.  I  shall 
therefore  simply  state  the  general  conclusion  derived  from 
the  decided  cases.  It  is  well  settled  that  where  the  parties 
have  so  stipulated  as  to  make  the  time  of  payment  of 
the  essence  of  the  contract,  within  the  view  of  equity  as 
well  as  of  the  law,  a  court  of  equity  cannot  relieve  a  vendee 
who  has  made  default.'  With  respect  to  this  rule  there  is 
no  doubt;  the  only  difficulty  is  in  determining  when  time 
has  thus  been  made  essential.    It  is  also  equally  certain 

»  See  ante,  §  451,  and  cases  in  note. 

(a)  See  Talkin  V.  Anderson  (Tex.),  cially  Drew  v.   Pedlar,   87   Cal.  443, 

19  S.  W,  852;   Sanders  v.  Carter,  91  25   Pac.    749,   22   Am.    St.   Rep.   257, 

Ga.   450,    17    S.   E.   345;    Aikman   v.  are  distinguished.    See  also  Equitable 

Sanborn    (Cal.),   52   Pac.   729;    Alii-  Loan  &  Security  Co.  v.  Waring,   117 

son  V.  Dunwody,  100  Ga.  51,  28  S.  E.  Ga.  599,  44  S.  E.  320,  97  Am.  St.  Rep. 

651;    Drov\Ti  v.   Ingcls,   3   Wash.    St,  176.      It    has    been    held,    in    a    few 

424,  28  Pac.  759;   Moore  v.  Durnam,  cases,   however,  that  if  the  damages 

63  N.  J.  Eq.  96,  51  Atl.  449;  Buck-  can    be    ascertained,    relief    will    be 

len  V.  Hasterlik,  155  111.  423,  40  N.  E.  awarded  even  in  case  of  a  forfeiture 

561;    Womack   v.   Coleman    (Minn.),  in   a   contract  for  the   sale  of   land. 

03    N.    W.    063;    Keefe    v.    Fairfield  Barnes  v.  Clement,  12  S.  D.  270,  81 

(Mass.),  08  N.  E.  342.     The  Califor-  N.    W.   301;    Easton  v.   Cressey,   100 

nia   rule   is  well   discussed    in   Glock  Cal.    75,    34    Pac.    622;     Allison    v. 

V.  Howard  &  Wilson  Colony  Co.,  123  Cocke's  Ex'rs,  100  Ky.  763,  51  S.  W. 

Cal.   1,  69  Am.  St.   Rep.   17,  55  Pac.  593.     A  party  who  is  unable  to  show 

713,  43   Jj.   R.   A.    199.     This   section  a  good  title  cannot  insist  upon  a  for- 

of  the  text  is  quoted  with  approval,  feiture:     Tharp  v.  I/ee,  25  Tex.  Civ. 

and    earlier    California    cases,    espe-  App.  439,  62  S.  W.  93, 


761  CONCEKNING   PENALTIES    AND    FORFEITURES.  §  456 

that  when  the  contract  is  made  to  depend  upon  a  condi- 
tion precedent, —  in  other  words,  when  no  right  shall  vest 
until  certain  acts  have  been  done,  as,  for  example,  until  the 
vendee  has  paid  certain  sums  at  certain  specified  times, — 
then,  also,  a  court  of  equity  will  not  relieve  the  vendee 
against  the  forfeiture  incurred  by  a  breach  of  such  condi- 
tion precedent.^  But  when,  on  the  other  hand,  the  stipula- 
tion concerning  payment  is  only  a  condition  subsequent, 
a  court  of  equity  has  power  to  relieve  the  defaulting  ven- 
dee from  the  forfeiture  caused  by  his  breach  of  this  con- 
dition, upon  his  paying  the  amount  due,  with  interest, 
because  the  clause  of  forfeiture  may  be  regarded  as  simply 
a  security  for  the  payment.*'  It  is  therefore  held,  in  a  great 
number  of  cases,  that  the  forfeiture  provided  for  by  such 
a  clause,  on  the  failure  of  the  purchaser  to  fulfill  at  the 
proper  time,  will  be  disregarded  and  set  aside  by  a  court 
of  equity,  unless  such  failure  is  intentional  or  willful. 
This  conclusion  is  in  plain  accordance  with  the  general 
doctrine  of  equity  in  relation  to  relief  against  forfeitures; 
but  it  cannot  be  regarded  as  a  universal  rule.  Under  ex- 
actly these  circumstances  many  American  decisions  have 
treated  such  a  clause  as  rendering  the  stipulated  time  of 
payment  essential,  and  as  therefore  binding  according  to 
its  letter,  and  have  refused  to  give  any  relief.^ 

§  456.  From  Other  Contracts. —  In  all  other  special  con- 
tracts containing  provisions  for  a  forfeiture,  the  same  gen- 

iSee  Pomeroy  on  Specific  Performance,  §§  335,  336,  379;  Wells  v.  Smith,  2 
Edw.  Ch.  78,  7  Paige,  22,  24;  Edgerton  v.  Peckham,  11  Paige,  352,  359;  San- 
born V.  Woodman,  5  Cush.  36;  Decamp  v.  Feay,  5  Serg.  &  K.  323,  326,  9  Am. 
Dec.  372;  Remington  v.  Irwin,  14  Pa.  St.  143,  145;  Jones  v.  Robbins,  29  Me. 
361,  50  Am.  Dec.  593;  Clark  v.  Lyons,  25  Bl.  105;  Snyder  v.  Spaulding,  57  111. 
480,  484;  McClartey  v.  Gokey,  31  Iowa,  505;  Steele  v.  Branch,  40  Cal.  3; 
Farley  v.  Vaughn,  11  Cal.  227;  Royan  v.  Walker,  1  Wis.  527;  as  examples  of 
cases  where  court  has  refused  to  interfere,  see  Benedict  v.  Lynch,  1  Johns. 
Ch.  370,  7  Am.  Dec.  484;  Grey  v.  Tubbs,  43  Cal.  359.  Such  decisions  as 
these  seem  to  ignore  the  equitable  principle  of  relief  from  penalties  and 
forfeitures. 

(b)  Quoted  in  Woods  v.  McGraw,  (c)  Cited  to  this  effect  in  Donnelly 

(C.  C.  A.),  127  Fed.  914.  ▼.  Eastes,  94  Wis.  390,  69  N.  W.  157. 


§  456  EQUITY   JUEISPRUDENCB.  762 

eral  principle  must,  of  course,  be  applied,  although  there 
may  be  some  doubt  or  difficulty  in  the  application.  It  is 
clear  that  if  the  contract  be  of  such  a  nature  that  a  clause 
for  the  payment  of  a  certain  sum  upon  its  violation  would 
be  pronounced  a  provision  for  liquidated  damages,  then  a 
court  of  equity  would  grant  no  relief  against  a  forfeiture  in- 
curred by  its  non-performance.  On  the  other  hand,  if  the 
obligation  created  by  the  contract  is  substantially,  though 
perhaps  indirectly,  a  pecuniary  one,  then  a  court  of  equity 
undoubtedly  will  aid  the  defaulting  party  by  setting  aside 
a  forfeiture.  Between  these  two  extremes  there  is  a  mass 
of  agreements  with  respect  of  which  the  action  of  the  courts 
in  giving  relief  may  perhaps  be  regarded  as  somewhat  dis- 
cretionary. The  mere  fact  that  a  certain  sum  stipulated 
to  be  paid  upon  a  violation  would  be  treated  as  a  penalty 
is  not  of  itself  decisive  in  favor  of  a  relief  from  forfeiture 
in  similar  cases.  The  examples  given  in  the  note  will  serve 
to  illustrate  the  action  of  courts  in  dealing  with  such  agree- 
ments.^ * 

1  In  Steele  v.  Branch,  4.0  Cal.  3,  a  contract  for  the  sale  of  land  contained  a 
condition  that  if  the  vendee  did  not  pay  off  a  mortgage  upon  the  premises 
when  it  fell  due,  the  contract  should  be  void  and  the  land  revert  to  the  vendor. 
This  condition  was  held  to  be  a  security  for  the  performance  of  an  obligation 
simply  pecuniary,  and  the  vendee  was  relieved  from  the  forfeiture  occasioned 
by  its  default.  In  Gregg  v.  Landis,  19  K  J.  Eq.  850,  21  N.  J.  Eq.  494,  514, 
the  question  was  carefully  examined.  A  contract  for  the  sale  of  land  stipu- 
lated that  the  vendee  should  plant  shade-trees  in  a  specified  manner  before  a 
certain  date,  should  erect  a  house  for  occupation  within  a  year,  and  should 
bring  at  least  two  and  a  half  acres  under  cultivation  every  year,  and  in  default 
of  any  of  these  provisions  the  vendor  should  be  entitled  to  take  back  the  land, 
etc.  The  court  held  that  the  forfeiture  caused  by  the  vendee's  non-performance 
could  not  be  set  aside.  In  City  Bank  v.  Smith,  3  Gill  &  J.  265,  a  contract  con- 
la)  In  Sanford  v.  First  Nat.  Bank  Pickle)  154,  18  S.  W.  262,  30  Am. 
of  Belle  Plaine,  94  Iowa,  6S0,  63  St.  Rep.  865,  15  L.  R.  A.  211.  But, 
N.  W  459,  relief  was  refused  against  on  the  other  hand,  where  the  agree- 
a  forfeiture  contained  in  an  agree-  ment  provided  for  a  forfeiture  of  all 
mcnt  of  partnership.  Relief  has  been  wages  in  case  of  the  employee  leaving 
refused  to  an  employee  who  agreed  without  notice,  the  stipulation  haa 
to  a  forfeiture  of  a  definite  amount  been  held  unreasonable  and  relief 
of  wagca  in  case  of  a  breach  of  the  granted.  Schmieder  v.  Kingsley,  6 
contrnrt  of  employment.  Tennessee  Misc.  Rep.  107,  26  N.  Y.  Supp.  31; 
M.fg.    (Jo.    V.     James,    91    Tenn.     (7       afllrmed,  7  Misc.  Rep.  744,  27   N.  Y. 


763 


CXDNCEENING   PENALTIES    AND    FORFEITURES. 


§457 


§  457.  Of  Shares  of  Stock. —  A  forfeiture  of  the  shares 
of  stod^  in  a  corporation,  regularly  and  duly  incurred  by 
the  stockholder's  or  subscriber's  failure  to  pay  the  calls 
or  installments  thereon  according  to  the  charter  or  by-laws 

■cerning  lottery  tickets  provided  that  no  holder  of  a  ticket  should  be  entitled  to 
a  prize  unless  he  presented  his  claim  within  a  year;  and  it  was  held  that  the 
presentation  within  a  year  was  thus  made  a  condition  precedent,  and  a  court 
could  not  relieve  a  ticket-holder  who  had  failed  to  comply  with  this  require- 
ment. See  also,  as  to  conditions  precedent  in  contracts,  Flagg  v.  Munger,  9 
N.  Y.  483,  500;  Faunce  v.  Burke,  16  Pa,  St.  469,  55  Am.  Dec.  519.  In  Henry 
V.  Tupper,  29  Vt.  358,  where  a  deed  was  conditioned  for  the  performance  of  a 
covenant  by  the  grantee  to  maintain  the  grantor  with  food  and  lodging,  it  was 
held  that  equity  would  relieve  the  grantee  from  a  forfeiture  occasioned  by  his 
unintentional  non-performance.  The  opinion  in  this  case  is  able  and  instruct- 
ive, and  contains  an  exhaustive  review  of  the  decisions,  English  and  American. 
It  was  said  that  whether  relief  would  be  granted  or  not  in  such  cases  was  dis- 
cretionary with  the  court.  See  also  Dunklee  v.  Adams,  20  Vt.  421,  50  Am.  Dec. 
44;  Austin  v.  Austin,  9  Vt.  420;  Hagar  v.  Buck,  44' Vt.  285,  8  Am,  Rep.  368. 


Supp,  1124.  In  Woodbury  v.  Turner, 
Day  &  Woolworth  Mfg.  Co.,  96  Ky. 
459,  29  S.  W.  295,  relief  was  refused 
against  a  forfeiture  in  a  contract  for 
the  sale  of  a  business.  It  has  been 
held  that  no  relief  can  be  had  against 
a  forfeiture  of  a  partnership  interest 
tor  violation  of  an  agreement  not  to 
use  liquor  in  excess.  Henderson  v. 
Murphree,  109  Ala.  556,  20  South.  45. 
In  Eureka  Light  &  Ice  Co.  v.  City  of 
Eureka  (Kan,  App.),  48  Pac.  935, 
a  street  railway  company  deposited 
a  sum  of  money  to  be  forfeited  in 
case  of  failure  to  comply  with  a  mu- 
nicipal ordinance.  The  court  refused 
to  relieve.  But  in  Wilson  v.  Mayor, 
etc.,  of  Baltimore,  83  Md.  203,  55 
Am.  St.  Rep.  339,  34  Atl.  774,  a  de- 
posit with  a  municipal  corporation 
to  secure  the  fulfillment  of  a  contract 
for  supplies  was  held  to  be  a  penalty, 
and  a  recovery  of  the  amount  so  de- 
posited was  allowed.  In  Fessman  v. 
Seeley  (Tex.  Civ.  App.),  30  S.  W, 
268,  the  plaintiff  had  paid  a  sum 
for  the  schooling  of  his  boy.  The 
boy  behaved  in  such  a  manner  as  to 
warrant  expulsion,  and  the  plaintiff 


thereupon  sued  to  recover  the  amount, 
paid.  It  was  held  that  he  was  not 
entitled  to  this  relief.  Forfeiture  of  a 
life  insurance  policy  for  non-payment 
of  premiums  at  a  stipulated  time 
will  not  be  relieved  against.  Klein 
V,  New  York  Life  Ins.  Co.,  104  U.  S. 
88;  Knickerbocker  Life  Ins.  Co.  v. 
Dietz,  52  Md.  16;  Iowa  Life  Ins.  Co. 
V.  Lewis,  187  U.  S.  335,  23  Sup.  Ct, 
12G;  Manhattan  Life  Ins.  Co.  v. 
Wright,  (C.  C,  A.),  126  Fed,  82,  In 
Gates  V.  Parmly,  93  Wis.  294,  66 
N.  W.  253,  67  N.  W.  739,  a  vendor 
who  had  deeded  property  agreed  to 
forfeit  half  the  purchase  price  if  he 
should  not  show  a  good  title.  The 
court  held  the  amount  to  be  excessive 
and  granted  relief.  In  Nichols  v. 
Haines,  98  Fed.  692,  39  C.  C.  A.  235, 
a  provision  for  forfeiture  of  a  de- 
posit for  non-performance  of  a  con- 
tract to  purchase  a  crop  of  oranges 
was  held  to  be  such  that  the  court 
would  grant  relief,  the  damages  being 
capable  of  ascertainment.  And  see 
Kerslake  v.  Mclnnia,  113  Wis.  659, 
89  N.  W.  895. 


§§  458,  459  EQUITY   JURISPRUDENCE.  764- 

of  the  company,  will  not  be  set  aside  or  relieved  against 
by  a  court  of  equity;  and  the  same  is  true  of  a  forfeiture 
of  public  and  governmental  stock  by  reason  of  a  failure 
to  comply  with  the  terms  of  the  loan  concerning  payment.^  * 
•  §  458.  When  Imposed  by  Statute. —  Finally,  whenever  any 
forfeiture  is  provided  for  by  a  statute,  to  be  incurred  on 
the  doing  or  not  doing  some  specified  act,  equity  can  afford 
no  relief  from  it,  and  the  same  is  true  of  a  statutory  penalty. 
A  court  of  equity  has  no  power  to  disregard  or  set  aside  the 
express  terms  of  statutory  legislation,  however  much  it 
may  interfere  with  the  operation  of  common-law  rules. ^  * 
§  459.  Equity  will  not  Enforce  Forfeitures —  The  second 
question  which  it  was  proposed  to  consider  is.  When  will 
a  court  of  equity  by  its  decree  actively  enforce  or  carry 
into  effect  a  forfeiture?  The  general  answer  to  this  ques- 
tion is  easy  and  clear.  It  is  a  well-settled  and  familiar 
doctrine  that  a  court  of  equity  will  not  interfere  on  behalf 

§  457,  1  Sparks  v.  Company,  etc.,  of  Liverpool  Water  Works,  13  Ves.  428,  433, 
434,  per  Sir  William  Grant,  M.  R. ;  Pendergast  v.  Turton,  1  Younge  &  C.  Ch.  98, 
110-112;  Naylor  v.  South  Devon  R'y  Co.,  1  De  Gex  &  S.  32;  Sudlow  v,  Dutch, 
etc.,  R'y  Co.,  21  Beav,  43;  Germantown  R'y,  etc.  v.  Fitler,  60  Pa.  St.  124,  131, 
90  Am.  Dec.  546 ;  Small  v.  Herkimer  Mfg.  Co.,  2  N.  Y.  335.  Of  course,  if  there 
is  any  fraud  or  other  inequitable  or  illegal  conduct  in  the  proceedings  by  which 
the  calls  are  made  or  the  shares  are  condemned,  equity  may,  on  thai  ground, 
relieve  the  stockholder  or  subscriber  from  the  forfeiture,  either  by  enjoining 
the  proceedings  of  the  corporation  officials,  or  by  setting  them  aside  if  they 
have  been  completed. 

§  458,  1  Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  452-456;  Keating  v. 
Sparrow,  1  Ball  &  B.  373;  Powell  v.  Redfield,  4  Blatchf.  45. 

§  457,   (a)    Burham  v.  S.  F.  Fuse  109  Tenn.   128,  70   S.  W.  821.     But 

Mfg.   Co.,   76   Cal.   26,   17   Pac.   339;  in    Mississippi    R.    Com.    v.    Gulf    & 

Southern  B.  &  L.  Ass'n  v.  Anniston  S.     I.    R.     Co.,     78    Mias.    750,     29 

L.  &  T.  Co.,  101  Ala.  582,  29  L.  R.  A.  South.  789,  a  state  railroad  commis- 

120,   15  South.   12.3,  46  Am.  St.  Rep.  sion  brought  a  bill  to  enforce  a  pen- 

138    (forfeiture  of  stock   in  building  alty  against  a  railroad  for  charging 

and  loan  association).  excessive    rates.      The    court    refused 

§  458,  (a)  This  paragraph  is  quoted  to   enforce,   and   held   that   the   state 

in  State  v.  McBride,  76  Ala.  51 ;  cited  cannot  compel  chancery  to  take  juris- 

with   approval    in    State   v.   Hall,   70  diction  in  such  a  case. 
Miss.  678,  13  South.  39.     In  this  case  See   Clark   v.   Barnard,    108   U.   S. 

the  court   hold    that   equity   "should  436,  2  Sup.  Ct.  878,  and  cases  cited; 

have    given    full    relief   by    following  Smith  v.  Mariner,  5  Wis.  551,  08  Am. 

the   law   and   onforring  the   penalty."'  Dec.    73. 
B«e  also  McCreary  v.  First  Nat.  Bank, 


765 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§459 


of  the  party  entitled  thereto,  and  enforce  a  forfeiture, 
but  will  leave  him  to  his  legal  remedies,  if  any,  even 
though  the  case  might  be  one  in  which  no  equitable  re- 
lief would  be  given  to  the  defaulting  party  against  the 
forfeiture.'*    The  few  apparent  exceptions  to  this  doctrine 


(a)  Quoted  in  McCIellan  v.  Coffin, 
93  Ind.  45G;  Olden  v.  Sassman  (N.  J. 
Eq.),  57  Atl.  1075;  Moberly  v.  City 
of  Trenton  (Mo.),  81  S.  W.  169. 
Cited  with  approval  in  Donnelly  v, 
Eastes,  94  Wis.  390,  09  N.  W.  157; 
Michigan  Pipe  Co.  v.  Fremont  Ditch, 
Pipe  Line  &  Reservoir  Co.,  Ill  Fed. 
284,  49  C.  C.  A.  324;  Worthington 
V.  Moon,  53  N.  J.  Eq.  46,  30  Atl.  251; 
Craig  V.  Hukill,  37  W.  Va.  520,  16 
S.  E.  363;  Negaunee  Iron  Co.  v.  Iron 
Cliffs  Co.  (Mich.),  96  N.  W.  468; 
Armitage  v.  Mt.  Sterling  Oil  &  Gas 
Co.  (Ky.),  80  S.  W.  177;  Morris  v. 
Kettle  (N.  J.  Eq.),  34  Atl.  376.  See 
also  Hagerty  v.  White,  69  Wis.  317, 
34  N.  W.  92;  Bucklen  v.  Hasterlik, 
155  111.  423,  40  N.  E.  561;  Mississippi 
R.  Com.  V.  Gulf  &  S.  I.  R.  Co., 
78  Miss.  750,  29  South.  789;  Hors- 
burg  V.  Baker,  1  Pet.  232;  Hodges  v. 
Buell  (Mich.),  95  N.  W.  1078;  Broad- 
nax  V.  Baker,  94  N.  C.  675,  55  Am. 
Rep.  633.  Thus,  a  court  of  equity 
does  not  lend  its  aid  to  divest  an  es- 
tate for  a  breach  of  a  condition  sub- 
sequent and  thereby  enforce  a  for- 
feiture. Birmingham  v.  Lesau,  77 
Me.  494,  1  Atl.  51;  Donnelly  v. 
Eastes,  94  Wis.  390,  69  N.  W.  157; 
mor  will  it  entertain  a  complaint  for 
the  purpose  of  inserting  a  forfeiture 
clause  in  an  absolute  deed;  Mills  v. 
Evansville  Seminary,  52  Wis.  669,  9 
N.  W.  925.  In  McCormick  v.  Rossi, 
70  Cal.  474,  15  Pac.  35,  plaintiff 
sought  a  decree  that  defendant  had 
forfeited  all  rights  under  a  contract 
for  the  sale  of  land  by  non-payment 
of  the  purchase  price.  It  was  held 
that  the  relief  should  be  denied,  for 
otherwise  a  forfeiture  would  be  en- 


forced. A  similar  result  was  reached 
in  Crane  v,  D\vj'er,  9  Mich.  350,  8o 
Am.  Dec.  87,  where  the  vendor,  after 
default  by  vendee,  sought  to  enjoin 
the  latter  from  removing  buildings 
from  the  premises.  But  in  McCIellan 
V.  Coffin,  93  Ind.  456,  it  is  held  that 
equity  will  interfere  to  remove  a 
cloud  on  title,  even  though  the  for- 
feiture of  some  interest  may  indi- 
rectly result.  Equity  will  not  divest 
a  vested  estate  by  enforcing  a  forfeit- 
ure for  the  breach  of  a  subsequent 
condition:  Craig  v.  Hukill,  37  W.  Va. 
520,  16  S.  E.  363.  See  also  Pike's 
Peak  Power  Co.  v.  City  of  Colorado, 
105  Fed.  1,  44  C.  C.  A.  33;  Henry  v. 
Mayer  (Ariz.),  53  Pac.  590;  Morse 
V.  O'Reilly,  Fed.  Cas.  No.  9,858.  It 
has  been  held  that  a  bill  to  quiet  title 
cannot  be  maintained  to  enforce  a 
condition  subsequent  contained  in  a 
deed.  Brown  v.  Chicago  &  N.  W.  R'y 
Co.  (Iowa),  82  N.  W.  1003.  In  Har- 
per V.  Tidholm,  155  111.  370,  40  N.  E. 
575,  a  vendee  of  land  recorded  his 
contract  for  a  deed  and  then  made 
default.  The  court  held  that  com- 
plainant might  maintain  a  bill  to  re- 
move the  cloud  on  the  title.  "  In  af- 
fording this  relief,  it,  of  course,  be- 
came necessary  for  the  court  to  de- 
termine whether  the  contract  was 
still  subsisting  or  not;  and  the  effect 
of  this  decree  was  to  find  that  it  had 
been  terminated,  in  accordance  with 
its  terms,  by  the  acts  of  the  parties 
themselves,  and  that  it  was  therefore 
null  and  void,  and  a  cloud  upon  the 
title."  A  party  cannot  come  into 
equity  to  enforce  a  forfeiture  by  in- 
junction :  Coe  V.  Columbus,  P.  <k 
I.  R.   Co.,   10  Ohio  St.  372,  75  Am. 


§  459  EQUITY   JURISPEUDENCE.  766 

are  not  real  exceptions,  since  they  all  depend  upon  other 
rules  and  principles/  The  reasons  of  the  doctrine  are  to 
be  found  in  the  universal  principle  that  a  court  of  equity 
refuses  to  aid  any  party  who,  by  the  remedy  which  he 
seeks  to  obtain  against  his  adversary,  is  not  himself  doing 

iPopham  V.  Bampfield,  1  Vern.  83;  Carey  v.  Bertie,  2  Vern.  339;  United 
States  V.  McRae,  L.  R.  4  Eq.  327;  Livingston  v.  Tompkins,  4  Johns.  Ch.  415^ 
431,  8  Am.  Dec.  598;  Baxter  v.  Lansing,  7  Paige,  350,  353;  Gordon  v.  Lowell, 
21  Me.  251;  Smith  v.  Jewett,  40  N.  H.  530,  534;  Atlas  Bank  v.  Nahant  Bank, 
3  Met.  581;  Warner  v.  Bennett,  31  Conn.  4G1,  468;  Oil  Creek  R.  R.  v.  Atlantic 
&  G.  W.  R.  R.,  57  Pa.  St.  65;  Meig's  Appeal,  62  Pa.  St.  28,  35,  1  Am.  Rep.  372; 
McKim  V.  White  HaU  Co.,  2  Md.  Ch.  510;  White  v.  Port  Huron,  etc.,  R.  R.,  13 
Mich.  356;  Michigan  Bank  v.  Hammond,  1  Doug.  (Mich.)  527;  Lawl  v.  Hyde, 
39  Wis.  353;  Eveleth  v.  Little,  16  Me.  374,  377;  Clarke  v.  Drake,  3  Chand.  253, 
259;  Fitzhugh  v.  Maxwell,  34  Mich.  138;  Beecher  v.  Beecher,  43  Conn.  556.  In 
Oil  Creek  R.  R.  v.  Atlantic,  etc.,  R.  R.,  57  Pa.  St.  65,  Mr.  Justice  Sharswood 
explained  the  equitable  grounds  of  this  universal  doctrine  as  follows:  A  lease 
had  been  granted  containing  a  condition  that  the  lessee  should  build  a  certain, 
railroad  within  a  prescribed  time,  and  the  plaintiffs  sought  to  enforce  a  for- 
feiture of  the  lease  on  account  of  the  defendant's  non-performance  of  this  con- 
dition. It  was,  therefore,  very  plainly  a  case  where  the  court  could  not,  in  ac- 
cordance with  the  settled  rule,  set  aside  the  forfeiture  at  the  suit  of  the  lessee. 
The  court  said:  "A  bill  for  the  specific  enforcement  of  a  contract  is  an  appeal 
to  the  conscience  of  the  chancellor.  He  exercises  upon  the  question  presented  a 
sound  discretion,  under  all  the  circumstances  of  the  case,  for  the  most  part  un- 
trammeled  by  rule  or  precedent.  If  the  bargain  is  a  hard  or  unconscionable 
one,  if  the  terms  are  unequal,  if  the  party  calling  for  his  aid  is  seeking  an  un- 
due advantage,  he  declines  to  interfere.  Therefore  it  is  that  although  courts ' 
of  equity  will  notj  in  general,  relieve  against  a  forfeiture,  unless  it  be  in  the 
ease  of  non-payment  of  rent,  where  an  exact  and  just  compensation  can  be  made 
by  decreeing  to  the  landlord  the  arrears  of  hia  rent,  with  interest  and  costs, 
yet  they  never  lend  their  assistance  to  the  enforcement  of  one,  but  leave  the 
party  to  his  legal  remedies.  More  especially  in  this  the  case  where  the  contract 

Dec.   518.     Thus,   in  Worthington  v.  long    delay    in    asserting   rights    the 

Moon,  53  N.  J.  Eq.  46,  30  Atl.  251,  lessor  had  waived  the  right  to  this, 

the  plaintiff  sought  to  enjoin  a  tres-  In  Field  v.  Ashley,  79  Mich.  231,  44 

pass   by  defendant,   who   was   remov-  N.  W.  602,  a  bill  was  brought  for  an 

ing  clay  from  plaintiff's  land.     Plain-  injunction  against  a  vendee  who  had 

tiff    maintained    that    defendant   had  not  acquired  title  to  prevent  a  dispo- 

forfoitcd  the  right  to  remove  the  clay  sition    of    the    property.      The    court 

already  dug  by  not  taking  it  in  time.  said:     "It  is  established  beyond  con- 

The  court  held  that  it  would  not  en-  troversy  that  courts  of  chancery   in 

force  the  forfeiture  by  tlic  injunction.  this  state  have  jurisdiction  in  cases 

In   Drake  v.   Lacoe,   157   Pa.    St.   17,  of    this    character.      Such    bills    are 

27  Atl.  538,  the  plaintiff  sought  a  de-  analogous  to  foreclosure  bills,  and  do 

ot;.o  of  fcr/i-iture  for  non-pa vrncnt  of  uot  seek  to  enforce  a  forfeiture, 
royalties.      The    court    held    Hint    ■-.-, 


767  ooNCERNjr.'C-  fenax,ties  and  forfeitures.         §  460 

equity,  or  who  does  not  come  before  the  court  "  with  clean 
hands," — the  same  principle  upon  which  the  court  acts 
when  it  refuses  to  specifically  enforce  a  contract  which  is 
unequal,  unjust,  or  has  any  inequitable  features  and  inci- 
dents. 

§  460.  There  are,  in  fact,  no  exceptions  to  this  doc- 
trine; those  which  appear  to  be  exceptions  are  not  so  in 
reality.*  Thus  a  court  of  equity  may,  by  its  restraining 
decree  or  injunction,  compel  the  observance  of  stipula- 
tions in  the  nature  of  conditions  by  which  some  restraint 
is  imposed  upon  the  use  or  occupation  of  land  conveyed, 
such  as  the  provisions  in  a  deed  by  which  the  grantee  is 
forbidden  to  build  in  a  certain  manner,  or  to  use  the  prem- 
ises for  certain  purposes,  thereby  creating  a  servitude  in 
favor  of  adjacent  land  of  the  grantor.  Compelling  the  per- 
formance of  such  a  stipulation,  which  perhaps  may  be  in 
the  form  of  a  condition,  by  restraining  its  violation,  is 
plainly  not  the  enforcement  of  a  forfeiture.^  Again,  a 
provision  in  the  form  of  a  condition  may  be  specifically 
enforced  as  though  it  was  a  simple  covenant,  but  without 
any  forfeiture.  The  agreement  is  thus  treated  as  though 
it  was  not  a  condition,  and  its  specific  performance  is  in 
fact  the  very  reverse  of  a  forteiture.^ 

has  been  substantially  carried  out,  but  its  literal  fulfillment  has  been  prevented 
by  uncontrollable  circumstances.  It  is  unnecessary  to  cite  authorities  in  sup- 
port of  these  positions.  They  underlie  all  the  cases  which  abound  upon  the 
subject,  and  have  been  canonized  in  the  standard  elementary  works.  They  com- 
mend themselves  to  every  man's  common  sense  of  reason  and  justice,  in  view  of 
the  special  objects  which  courts  of  equity  have  been  constituted  to  effectuate." 

1  Gibert  v.  Peteler,  38  N.  Y.  165,  97  Am.  Dec.  785;  Trustees,  etc.  v.  Lynch, 
70  N.  Y.  440,  20  Am.  Rep.  615,  and  cases  cited;  Lattimer  v.  Livermore,  72 
N.  Y.  147;  Badger  v.  Boardman,  16  Gray,  559;  Whitney  v.  Union  E'y,  11  Gray, 
359,  71  Am.  Dec.  715;  Linzee  v.  Mixer,  101  Mass.  512;  Dorr  v.  Harrahan,  101 
Mass.  531,  3  Am.  Rep.  398. 

2  Livingston  v.  Sickles,  8  Paige,  398,  7  Hill,  253;  Carpenter  t.  Catlin,  44 
Barb.  75;  Leach  v.  Leach,  4  Ind.  628,  58  Am.  Dec.  642. 

(a)  Quoted  in  Moberly  v.  City  of  363.     In  Negaunee  Iron  Co.  v.  Iron 

Trenton   (Mo.),  81  S.  \/.  109.     Cited  Cliffs    Co.     (Mich.),    90    N.    W.    468, 

with  approval  to  effect  that  there  are  however,  it  is  held  that  equity  may 

no   exceptions   to   the   rule   in    Craig  recognize  a  forfeiture  when  it  is  onlj 

▼.  Hukill,   37   W.  Va.  520,   16   S.  E.  an  incident  of  a  past  transaction. 


§461 


EQUITY   JUEISPBUDENCri, 


768 


SECTION  n. 


CONCERNING  ELECTION. 


ANA1,TSIS. 

S  461.     Questions  stated. 
li  462-465.     Rationale  of  the  doctrine  discussed. 

§  463.     In  the  Roman  law. 

§  464.     Foundation,  the  presumed  intention  of  the  donor. 

S  465.     The  true  foundation  is  the  principle,  He  who  s«eki  equity  miut 
do  equity. 
|§  466-470.     Meaning,  extent,  and  effects  of  the  doctrine. 

§  466.     Election  in  conformity  with  instrument  of  donation. 
{S  467,468.     Election  in  opposition  thereto;  rules;  compensation. 

§  469.     No  election  unless  compensation  can  be  made. 

§  470.     Applies  to  all  instruments  of  donation. 
IS  471-505.     Applications;  classes  of  cases  in  which  the  necessity  for  an  elec- 
tion does  or  does  not  arise. 

S  472.     Fundamental  rule;  what  creates  the  necessity  for  an  election. 
f§  473-475.     Subordinate  rules  of  interpretation. 

S§  473,474.     Donor  nas  only  a  partial  interest;  evidence  of  intention  not  ad- 
missible; a  general  gift  raises  no  election. 

§  475.     Other  special  rules  of  interpretation. 
{§  476-486.     First,  class:     Donor  gives  property  wholly  another's. 

§  477.     Ordinary  case,  gift  of  specific  property. 
J§  478-480.     Under  appointments  in  pursuance  of  powers. 
fS  481-486.     Where  testator  has  attempted  to  give  property  by  a  will  which 
is  ineffectual. 

§  482.     Infancy  or  coverture  of  testator. 

§  483.     Will  valid  as  to  personal,  invalid  as  to  real,  estate. 

§  484.     Will  invalid  as  to  property  in  another  state  or  country, 

§  485.     Will  devising  after-acquired  lands. 

§  486.     Will  of  copyholds. 
II  487-505.     Second  class:     Donor  gives  property  in  which  he  has  a  partial 
interest. 

§  488.     The  general  doctrine. 

S  489.     Donor  owns  only  an  undivided  share. 

§  490.     Donor  owns  only  a  future  interest. 

§   491.     Devise  of  lands  encumbered. 
II  492-502.     Dower;   widow's  election  between  dower  and  gifts  by  her  htii- 
band's  will. 

§  493.     The  general  rule. 

§  494.     Contrary  legislation  in  various  states. 
II  49.J  .^^02.     Classes  of  testamentary  dispositions. 

§  490.     Express  declaration. 

I  497.     Devise  of  a  part  of  testator's  land  to  the  widow,  and  the  rest  to 
otlicrs. 

I  498.     Devise  to  the  widow  for  life. 


769  CONCERNING    ELECTION.  §  461 

§  499.  Devise  in  trust  to  sell,  or  with  a  power  of  sale. 

I  600.  Gift   of   an   annuity,   etc.,   to  widow,    charged   upon   the  landi 
devised  to  others. 

§  501.  Devise  with  express  power  of  occupying,  leasing,  etc. 

§  502.  Devise  to  widow  and  others  in  equal  shares. 

II  503-505.  Election  in  devises  of  community  property. 

§  506.  The  remaining  questions  stated. 

§§  507-510.  Who  may  elect;  married  women;  infants;  lunatics. 

§§  511,512.  Eights  and  privileges  of  persons  bound  to  elect. 

§  513.  Time  of  election;  state  statutes. 

§§  514,515.  Mode  of  election,  express  or  implied;  conduct  amounting  to  an 

election. 

§§516,517.  Effects  of  an  election. 

!§  518,  519.  Equitable  jurisdiction  in  matters  of  election. 

§  461.  Questions  Stated.' —  As  I  have  already  said  in 
the  preceding  chapter,  the  equitable  doctrine  of  election 
originates  in  inconsistent  or  alternative  gifts,  with  the  in- 
tention, either  expressed  or  implied,  that  one  shall  be  the 
substitute  for  the  other.  A  court  of  equity,  therefore,  acting 
upon  the  fundamental  principle  that  he  who  seeks  equity 
must  do  equity,  as  explained  in  a  former  section,  declares 
that  the  donee  is  not  entitled  to  both  benefits,  but  to  the 
choice  of  either, —  to  an  election  between  them.^  There 
are  two  cases,  differing  in  their  circumstances,  but  de- 
pending upon  this  one  broad  principle,  which  are  to  be 
considered,  although  the  first  of  them  only  is  usually  in- 
cluded under  the  name  **  election;"  the  second  will  more 
properly  be  treated  of  under  the  title  of  satisfaction.  1. 
The  owner  of  an  estate,  in  an  instrument  of  donation,  either 
will  or  deed,  uses  language  with  reference  to  the  property 
of  another,  which,  if  that  property  were  his  own,  would 
amount  to  an  effectual  disposition  of  it  to  a  third  person; 
and  by  the  same  instrument  gives  a  portion  of  his  own  estate 
to  that  same  proprietor  whose  rights  of  ownership  he  had 
thus  assumed  to  transfer.  Under  these  circumstances,  an 
obligation  rests  upon  that  proprietor  either  of  relinquish- 

1  See  ante,  §  395;  Mr.  Swanston's  note  to  Dillon  v.  Parker,  1  Swanst.  394; 
Snell's  Equity,  178. 

(a)  This  chapter  is  cited,  gener-  115,  51  Am.  St.  Rep.  203,  30  N.  E. 
Ally,  in  Moore  v.  Baker,  4  Ind.  App.       629. 

Vol.  1  —  49 


§  462  EQUITY   JURISPRUDENCE.  770 

ing  (at  least  to  the  extent  of  indemmfying  those  whom 
he  disappoints)  the  benefit  conferred  on  him  by  the  instru- 
ment, if  he  asserts  his  own  inconsistent  proprietary  rights ; 
or  if  he  accepts  that  benefit,  of  completing  the  intended 
disposition,  by  transferring  to  the  third  person  that  por- 
tion of  his  own  property  which  it  purports  to  effect.^  There 
is  a  particular  branch  of  this  case  in  which  the  doctrine 
of  election  may  arise,  not  because  a  party  has  attempted 
to  transfer  property  not  his  oivn,  but  where  a  testator  has 
attempted  to  dispose  of  some  of  his  own  property  by  means 
of  a  will  ineffectual  for  that  purpose.^  2.  If  the  person  to 
whom,  by  an  instrument  of  donation,  a  benefit  is  given, 
possesses  at  the  same  time  a  previous  claim  against  the 
donor,  and  an  intention  appears  that  he  shall  not  both 
enjoy  the  benefit  and  enforce  the  claim,  the  same  equitable 
doctrine  requires  the  donee  to  elect  between  his  original 
and  his  substituted  rights;  the  gift  being  designed  as  a 
satisfaction  of  the  claim,  he  cannot  accept  the  former 
without  renouncing  the  latter.^  It  is  to  the  first  of  these 
two  cases  that  the  doctrine  of  ''  election,"  technically  so 
called,  applies,  which  will  be  examined  in  the  present 
section. 

§  462.  Rationale  of  the  Doctrine. —  The  essential  facts 
presenting  an  occasion  for  the  doctrine  of  election  are: 
A  gives  to  B  property  belonging  to  C,  and  by  the  same 
instrument  gives  to  C  other  property  belonging  to  him- 
self. The  equitable  doctrine  upon  these  facts,  briefly,  is: 
C  has  two  alternatives:  1.  He  may  elect  to  take  under 
the  instiTiment,  and  to  carry  out  all  its  provisions;  he 
will  then  take  A's  property,  which  was  given  to  him,  and 
B  will  take  C's  property.  2.  He  may  elect  against  the 
instrument.     In  that  case  he  will  not  wholly  forfeit  the 

2  Mr.  Swanston's  note  b  to  Dillon  v.  Parker,  1  Swanst.  394;  Snell's  Equity, 
178. 

3  As  where  a  testator,  by  the  same  will,  has  purported  to  devise  his  land  to 
a  third  person,  and  has  bequeathed  personal  property  to  his  heir  at  law,  and 
the  will  is  valid  as  one  of  personal  estate,  but  ineffectual  as  one  of  real  estate. 

*  Snell's  Equity,  178. 


771  CONCERNING   ELECTION.  §  463 

benefits  intended  to  be  conferred  upon  him;  he  must  sur- 
render only  so  much  of  such  benefits  as  may  be  necessary 
to  compensate  B  for  the  disappointment  he  has  suffered 
by  C  's  election  to  take  against  the  instrument.^  *  The  foun- 
dation of  this  doctrine  is  said  by  the  early  cases  to  be  the 
intention  of  the  donor,  either  expi  'ssed  in  the  instrument 
or  implied  by  its  terms;  and  the  court,  by  requiring  an 
election  to  be  thus  made,  is  said  to  be  carrying  into  effect 
this  assumed  intention.^  Whether  this  be  the  correct  ex- 
planation of  the  rule  will  be  considered  in  subsequent  para/- 
graphs.  As  the  doctrine  of  election  is  one  of  the  most  dis- 
tinctive and  remarkable  features  of  equity  jurisprudence^ 
I  purpose  in  my  further  treatment  of  it  to  explain,  in  the 
first  place,  its  general  meaning,  scope,  and  effect;  and  in 
the  second  place,  to  describe  its  particular  applications,  to- 
gether with  its  limitations  and  exceptions  as  established  by 
the  course  of  decision. 

§  463.  In  the  Roman  Law. —  The  germ  of  the  doctrine  of 
election,  as  above  stated,  is  confessedly  to  be  found  in  the 
Roman  law.  The  substance  of  a  Roman  testament  con- 
sisted in  the  designation  of  some  person  who  was  thereby 
constituted  the  heir  or  universal  successor  to  the  testator^ 
and  a  time  was  allowed  him  in  which  to  decide  whether  he 
would  accept  or  reject  the  inheritance.  If  he  accepted,  he 
not  only  acquired  a  title  to  all  the  property  and  assets  of 
the  deceased,  but  he  also  became  subject  to  all  the  debts 
and  liabilities  of  the  testator,  and  substantially  to  all 
the  legacies  and  bequests  to  particular  individuals  contained 
in  the  will.  Among  the  burdens  thus  assumed  by  the  heir 
was  that  of  procuring  for  a  legatee  or  giving  to  him  the 
value  of  any  particular  subject-matter  which  the  testator 

1  Gretton  v.  Haward,  1  Swanst.  409,  433,  and  the  note  of  Mr.  Swanston,  in' 
which  the  prior  decisions  are  collected,  and  rules  deduced  from  them  ar© 
formulated. 

2  Dillon  V.  Parker,  1  Swanst.  359,  394,  note  of  Mr.  Swanston. 

(a)  This  paragraph  of  the  text  is  Eq.  597,  40  Am.  St.  Rep.  532,  29  AtL 
cited  in  Hattersley  v.  Bissett,  51  N.  J.        187. 


§  463  EQUITY   JUEISPKUDENCB.  772 

had  bequeathed  to  him,  knowing  that  it  belonged  to  a  third 
person.  If  a  testator,  besides  appointing  Titius  his  heir, 
had  said,  '*  I  bequeath  to  Claudius  the  house  of  Sem- 
pronius,  situate  at  Tuseulum,"  Titius,  on  accepting  the  in- 
heritance, was  bound  either  to  purchase  the  house  of  Sem- 
pronius,  and  convey  it  to  Claudius,  or  if  that  was  impos- 
sible, to  pay  Claudius  the  appraised  value  of  the  house. 
This  rule,  however,  only  applied  where  the  testator  knew 
that  the  thing  which  he  bequeathed  was  the  property  of 
another,  and  not  if  he  erroneously  supposed  that  it  was  his 
own.  In  that  case  the  legacy  would  be  simply  void.  This 
doctrine  is  stated  in  the  Institutes  as  follows:  **A  testator 
may  not  only  give  as  a  legacy  his  own  property,  or  that 
of  his  heir,  but  also  the  property  of  others.  The  heir  is 
then  obliged  either  to  purchase  and  deliver  it,  or  if  it  cannot 

be  bought,  to  give  its  value But  when  we  say  that 

a  testator  may  give  the  goods  of  another  as  a  legacy,  we 
must  be  understood  to  mean  that  this  can  only  be  done 
if  the  deceased  knew  that  what  he  bequeathed  belonged 
to  another,  and  not  if  he  were  ignorant  of  it;  since,  if 
he  had  known  it,  he  would  not,  perhaps,  have  left  such 
a  legacy."^  In  this  respect,  our  equity  jurisprudence 
differs  widely  from  the  Roman  law,  since  the  equitable 
doctrine  of  election  applies,  whether  the  donor  was  or 
was  not  aware  that  he  was  dealing  with  property  not  his 
own." 

1  Justinian's  Institutes,  lib.  ii.,  tit.  xx.,  §  4:  "  Non  solum  autem  testatoris 
vel  heredis  res,  sed  etiam  aliena  legari  potest,  ita  ut  heres  cogatur  redimera 

earn  et  proestare;  vel  si  non  potest  redimere,  oestimationem  ejus  dare 

Quod  autem  diximus  alienam  rem  posse  legari,  ita  intelligendum  est,  si  defunc- 
tus  sciebat  alienam  rem  esse,  non  et  si  ignorabat;  forsitan  enim  si  scisset 
alienam,  non  legasset." 

The  French  code  entirely  refuses  to  adopt  the  doctrine  of  election,  and  the 
bequest  or  donation  of  another's  property  would  be  void.  Code  Civil,  §  1021: 
•■  Lorsque  le  testateur  aura  I6guC  la  chose  d'autrui,  le  legs  sera  nul,  soit  que  le 
testateur  ait  connu,  ou  non,  qu'elle  ne  lui  appartenait  pas." 

(a)  The  text  is  cited  to  this  effect  in  Barrier  v.  Kelly  (AUbb.),  33  South. 
^74. 


773  CONCERNING    ELECTION.  §  464 

§  464.  Presumed  Intention  of  the  Donor.* — In  seeking  the 
origin  of  the  doctrine,  and  endeavoring  to  ascertain  its 
true  foundation,  I  will  quote  by  way  of  illustration  one  of 
the  earliest  cases  in  which  the  question  distinctly  arose:' 
"A  was  seised  of  two  acres,  one  in  fee,  t'other  in  tail;  and 
having  two  sons,  he,  by  his  will,  devises  the  fee-simple  acre 
to  his  eldest  son,  who  was  issue  in  tail ;  and  he  devised  the 
tail  acre  to  his  youngest  son,  and  dy'd;  the  eldest  son  en- 
tered upon  the  tail  acre;  whereupon  the  youngest  son 
brought  his  bill  in  this  court  against  his  brother,  that  he 
might  enjoy  the  tail  acre  devised  to  him,  or  else  have  an 
equivalent  out  of  the  fee  acre;  because  his  father  plainly 
designed  him  something.  Lord  Chancellor  Coivper:  This 
devise  being  designed  as  a  provision  for  the  youngest  son, 
the  devise  of  the  fee  acre  to  the  eldest  son  must  be  under- 
stood to  be  with  a  tacit  condition  that  he  shall  suffer  the 
younger  son  to  enjoy  quietly,  or  else  that  the  younger  son 
shall  have  an  equivalent  out  of  the  fee  acre,  and  decreed 
the  same  accordingly."  The  rationale  of  the  doctrine,  as 
shown  by  this  and  other  decisions,  plainly  appears  to  be 
that  a  court  of  equity  implies  a  condition  where  none  is 
expressed  in  the  will,  and  annexes  it  to  the  donation.  As 
Lord  Chancellor  Cowper  says:  ''  The  devise  of  the  fee 
acre  to  the  eldest  son  is  understood  to  be  with  a  tacit  con- 
dition that  he  shall  suffer  the  younger  son  to  enjoy  quietly." 
It  should  be  remarked  that  this  gives  no  real  explanation, — 
adds  nothing  to  the  mere  statement  of  the  doctrine  itself. 
When  we  say  that  equity  implies  a  condition  in  the  instru- 
ment annexed  to  the  donation,  we  are,,  in  fact,  only  stating 
the  doctrine  of  election  in  other  words :  the  very  obligation 
to  elect  consists  in  the  conditional  nature  of  the  devise. 
Judges  have  therefore  gone  a  step  further  back,  and  have 
said  that  the  condition  is  implied^  because  such  result  — 

1  Anonymous,  Gilb.  Eq.  15. 

(a)  This  paragraph  of  the  text  is       187.     §§  464-471  are  cited  in  Drake 
cited  in  Hattersley  v.  Bissett,  51  N.  J.       v.  Wild,  (Vt.),  39  Atl.  248. 
Eq.  597,  40  Am.  St.  Kep.  532,  29  Atl. 


§  464  EQUITY   JURISPRUDENCE.  774 

such  tacit  addition  to  the  instrument  —  must  be  regarded 
as  being  in  accordance  with  the  actual  intention  of  the 
testator  or  other  donor.  This,  then,  is  said  to  be  the  foun- 
dation of  the  doctrine, —  the  actual  intention  of  the  donor 
assumed,  from  the  nature  of  the  gifts,  to  have  existed.  A 
disposition  calling  for  an  application  of  the  doctrine  of 
election  may  be  made  under  two  following  different  states 
of  circumstances:  Either  the  donor  may  know  that  the 
property  which  he  assumes  to  deal  with  is  not  his  own, 
but  belongs  to  another,  and  notwithstanding  such  knowledge 
he  may  assume  to  give  it  away;  or  he  may  give  it  away,  not 
knowing  that  it  belongs  to  another,  but  erroneously  and 
in  good  faith  supposing  that  it  is  his  own.  In  the  first 
of  these  two  cases,  the  presumption  of  an  intention  on 
the  part  of  the  donor  to  annex  a  condition  to  the  gift 
calling  for  an  election  by  the  beneficiary  plainly  agrees 
with  the  actual  fact;  at  all  events,  it  violates  no  prob- 
abilities. A\nien  a  testator  devises  an  estate  belonging 
to  A  to  some  third  person,  and  at  the  same  time  be- 
stows a  portion  of  his  own  property  upon  A,  he  undoubtedly 
must  rely  upon  the  benefits  thus  conferred  upon  A  as  an 
inducement  to  a  ratification  by  A  of  the  whole  disposition. 
To  give  A  the  property  which  the  testator  was  able  to  dis- 
pose of,  and  at  the  same  time  to  allow  him  to  claim  his 
own  estate,  which  had  been  devised  to  the  third  person,  by 
his  own  paramount  title,  would  be  to  frustrate  the  evident 
intention  of  the  testator.  In  the  second  case,  where  the 
testator,  or  other  donor,  erroneously  supposes  that  the 
property  which  he  undertakes  to  give  away  is  in  fact  his 
own,  the  doctrine  of  election  applies  with  the  same  force  and 
to  the  same  extent  as  in  the  former.^    Here  it  is  in  the 

2  See  Cooper  v.  Cooper,  L.  R.  6  Ch.  15,  16,  20.  In  the  court  of  first  instance, 
Vicc-Chancc'llor  Stuart  held  there  was  no  case  for  an  election.  He  said  (p,  16, 
in  note)  :  "  In  order  to  raise  a  case  for  election,  there  must  be  an  attempted 
disjKisition  of  property  over  which  the  testator  has  no  disposing  power,  and  a 
disposition  of  property  of  his  own  on  such  a  footing  as  shows  that  he  consid- 
ered himaelf  to  have  poiocr  to  dispose  of  the  former  property."  The  vice-chan- 
«ellor  thus  expresses  an  opinion  that  the  doctrine  of  election  07ily  applies  in 


775  CONCERNING   ELECTION.  §  464 

nature  of  things  simply  impossible  that  the  donor  conld 
actually  have  had  the  intention  which  the  theory  imputes 
to  him,  since  he  really  believes  himself  to  have  a  disposing 
power  of  the  property,  or  to  be  dealing  with  property  which 
is  his  own.**  And  yet  the  earlier  decisions,  at  least,  re- 
garded the  presumed  intention  to  annex  a  condition  to 
the  gift  as  the  true  foundation  of  the  doctrine  in  this  case 
as  much  as  in  the  other.^  The  course  of  reasoning  through 
which  the  judicial  mind  passed  in  reaching  these  conclu- 
sions is  very  plain,  and,  as  I  think,  very  natural.     In  an 

the  second  case  mentioned  in  the  text,  namely,  when  the  donor  had  acted  under 
an  erroneous  supposition.  This  decision  was  reversed  by  the  court  of  appeals. 
Lord  Justice  James  thus  states  the  doctrine  (p.  20)  :  "  The  vice-chancellor  ap- 
pears to  have  thought  that  there  was  some  distinction  between  an  invalid  gift 
of  property  which  the  testator  believed  to  be  his  own  and  an  invalid  gift  of 
property  which  the  testator  knew  not  to  be  his  own,  but  which  he  believed  he 
had  a  power  of  appointment  over,  which  he  had  not.  I  am  unable  to  find  any 
authority  or  any  principle  on  which  to  rest  this  distinction.  It  is  in  both  cases 
in  substance  a  disposition,  or  an  attempted  disposition,  by  will,  of  property 
over  which  the  testator  has  no  disposing  power."  See  Ingram  v.  Ingram,  cited 
in  Kirkham  v.  Smith,  1  Ves.  Sr.  258,  259 ;  Thellusson  v.  Woodford,  13  Ves.  209, 
220 ;  Whistler  v.  Webster,  2  Ves.  367 ;  Birmingham  v.  Kirwan,  2  Schoales  &  L. 
444;  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291. 

3  The  note  of  Mr.  Swanston  to  the  case  of  Dillon  v.  Parker,  1  Swanst.  359, 
394,  401,  has  always  been  considered  as  an  accurate  statement  of  the  doctrine 
and  of  the  reasons  upon  which  it  is  based.  He  reaches  this  conclusion,  as  ap- 
plicable under  all  circumstances :  "  The  foundation  of  the  equitable  doctrine 
is  the  intention,  explicit  or  presumed,  of  the  author  of  the  instrument  to  which 
it  is  applied."  The  opinion  of  Lord  Alvanley  in  Whistler  v.  Webster,  2  Ves. 
367,  370,  has  always  been  looked  upon  as  a  leading  one.  He  says :  "  The  ques- 
tion is  very  short, —  whether  the  doctrine  laid  down  in  Noys  v.  Mordaunt,  2 
Vern.  581,  Eq.  Cas.  Abr.  273,  pi.  3,  Gilb.  Eq.  2,  and  Streatfield  v.  Streatfield, 
Cas.  t.  Talb.  176,  has  established  this  broad  principle,  viz.,  that  no  man  shall 
claim  any  benefit  imder  a  will  without  conforming,  as  far  as  he  is  able,  and 
giving  elTect  to  everything  contained  in  it,  whereby  any  disposition  is  made 
showing  an  intention  that  such  thing  shall  take  place,  without  reference  to  the 
circumstance  whether  the  testator  had  any  knowledge  of  the  extent  of  his 
power  or  not.  Nothing  can  be  more  dangerous  than  to  speculate  upon  what  he 
would  have  done  if  he  had  known  one  thing  or  another.  It  is  enough  for  me  to 
say  he  had  such  an  intention;  and  I  will  not  speculate  upon  what  he  would 
have  intended  in  different  cases  put." 

(b)  This  paragraph  of  the  text  is       ing  within  the  second  category  stated 
quoted  extensively  in  Barrier  v.  Kelly       by  the  author. 
(Miss.),  33  South.  974,  a  case  fall- 


§  465  EQUITY   JUEISPBUDENCE.  776 

early  case  of  the  first  kindj  where  a  testator  had  designedly 
assumed  to  devise  property  over  which  he  knew  that  he 
had  no  disposing  power,  the  court  saw,  and  were  compelled 
to  see,  an  actual  intention  of  the  testator  to  annex  the  tacit 
condition  to  his  gift,  and  this  intention  was  made  the  basis 
of  the  doctrine  of  election  as  applied  under  such  circum- 
stances. "When  another  case  arose  of  the  second  kind^ 
where  the  testator  had  acted  under  an  erroneous  supposi- 
tion, the  court,  having  concluded  that  the  doctrine  of  elec- 
tion must  also  be  applied  here,  naturally,  and  as  a  part 
of  their  verbal  judicial  logic,  gave  to  it  the  same  founda- 
tion in  an  assumed  intention  of  the  testator,  although,  under 
the  circumstances,  no  such  intention  actually  existed  or 
could  exist.  The  doctrine,  therefore,  although  originally 
springing  from  an  actual  intention,  and  although  professing 
always  to  be  based  upon  the  intention,  is  really  independent 
of  intention ;  while  the  language  may  still  be  repeated,  that 
the  court  presumes  an  intention,  no  evidence  would  ever 
be  admitted  for  the  purpose  of  showing  its  existence  or 
non-existence.  In  short,  the  doctrine  of  election  has  become 
a  positive  rule  of  the  law  governing  the  devolution  and 
transmission  of  property  by  instruments  of  donation,  and 
is  invoked  wholly  irrespective  of  the  intention  of  the  donor, 
although  in  the  vast  majority  of  cases  it  undoubtedly  does 
carry  into  effect  the  donor's  real  purpose  and  design. 

§  465.  True  Foundation — "What,  then,  is  the  real  founda- 
tion? It  is  possible  to  answer  this  question.  There  is,  in 
my  opinion,  a  true  rationale  which  at  once  relieves  the  doc- 
trine of  election  from  all  the  semblance  of  technicality  and 
untruth  attaching  to  it  when  it  is  referred  to  a  presumed 
intention,  which  prevents  it  from  being  regarded  as  a 
stretch  of  arbitrary  power  on  the  part  of  the  court,  and 
which  shows  it  to  be  in  complete  harmony  with  the  highest 
requirements  of  righteousness,  equity,  and  good  faith.  I 
venture  the  assertion  that  the  only  true  basis  upon  which 
the  doctrine  can  be  rested  is  that  maintained  in  the  pre- 
ceding chapter,  namely,  the  grand  principle  that  he  who 


777  COiJCKiiJSilslG    KI.KCTION.  ^^  400 

seeks  equity  must  do  equity.  This  principle  has  ordinarily 
been  regarded  simply  as  furnishing  a  guide  to  the  courts 
in  their  apportionment  of  equitable  relief  among  the  par- 
ties in  a  great  variety  'of  cases ;  but,  as  I  have  shown,  it 
is  also  the  undeniable  source  of  certain  distinctively  equi- 
table doctrines.  There  is  no  doctrine  more  unmistakably 
and  completely  derived  from  this  grand  principle  than  that 
of  election.  The  whole  theory  and  process  of  election  is 
a  practical  application  of  the  maxim,  He  who  seeks  equity 
must  do  equity.  A  party  asserts  his  claim  to  certain  prop- 
erty; in  order  that  he  may  obtain  any  relief,  he  must 
aclmowledge  and  make  provision  for  the  equitable  rights 
of  other  parties  derived  from  the  same  instrument,  and  to 
that  end  must  make  his  election,  so  that  in  either  choice 
those  rights  shall  be  preserved.  The  very  election  which 
he  is  obliged  to  make  consists  in  the  '*  doing  equity  "  to 
others  which  the  principle  demands.  In  this  principle.  He 
who  seeks  equity  must  do  equity,  is  found  a  sufficient  expla- 
nation and  a  solid  foundation  for  the  doctrine,  which  is  thus 
seen  to  harmonize,  in  all  its  phases  and  applications,  with 
the  requirements  of  justice  and  good  faith.^ " 

§  466.  Meaning,  Scope,  and  Effects  —  Election  in  Conform- 
ity with  the  Instrument. —  Having  thus  ascertained  the 
origin  and  foundation  of  the  doctrine,  I  proceed  to  describe 
its  true  meaning,  scope,  and  effect.  This  discussion  will 
consist  mainly  in  determining  with  accuracy  the  nature  of 
the  tacit  condition  imposed  by  the  donor  upon  the  gift  which 

1  Some  writers  and  some  judges,  in  treating  "  election "  as  based  wholly 
upon  the  notion  of  a  presumed  intention,  have  described  the  doctrine,  in  cer- 
tain of  its  applications,  as  arbitrary  and  technical,  and  as  an  unwarrantable 
exercise  of  power  by  the  court  of  chancery.  In  abandoning  the  theory  of  an 
"  intention  "  as  more  formal  than  real,  and  in  placing  election  upon  a  basis 
of  principle,  —  He  who  seeks  equity  must  do  equity,  —  I  have,  I  would  ven- 
ture to  suggest,  relieved  it  from  these  criticisms,  and  have  shown  that  the  early 
chancellors,  in  its  invention  and  development,  acted  wisely,  and  in  full  accord- 
ance with  the  conceptions  of  a  high  morality,  upon  which  the  whole  system 
of  equity  jurisprudence  is  constructed. 

(a)    The  text  is  cited   in   Penn  v.       proved   in   Barrier  v.  Kelly    (Miss.), 
Guggenheimer,  7G  Va.  839,  846.     The       33  South,  974. 
author's    conclusions     are     also     ap- 


§  40  7  EQUITY   JUfilSPfiUDENCE.  778 

he  has  made  to  the  beneficiary  whose  property  he  also  as- 
sumed to  dispose  of  to  another  person.  What  is  this  con- 
dition? Lord  Chancellor  Cowper,  in  the  case  heretofore 
quoted,  stated  it  very  briefly,  that  *'  the  eldest  son  shall 
suffer  the  youngest  son  to  enjoy  quietly,  or  else  have  an 
equivalent  out  of  the  fee  acre."  The  tacit  condition  is  thus 
always  double  and  alternative  in  its  form.  Its  effect  is, 
that  the  donee,  whose  own  property  has  also  been  given  to 
another  person,  may  elect  either  to  take  under  and  in  con- 
formity with  the  will  or  other  instrument  of  donation,  or 
else  to  take  against  it.  If  he  elects  the  first  alternative, 
and  takes  under  the  will,  then  the  condition  simply  requires 
him  to  carry  out  all  the  dispositions  of  that  instrument.  In 
other  words,  he  receives  the  testator's  property  directly 
bestowed  upon  him  as  devisee,  and  at  the  same  time  con- 
veys his  own  estate  to  the  other  person  designated  hy  the 
will  as  the  recipient  of  it.  There  is  no  difficulty  in  this  case, 
no  doubt  or  question  concerning  this  alternative  branch  of 
the  tacit  condition ;  the  will  or  other  instrument  of  donation 
is  carried  into  effect  in  exact  conformity  with  its  dispo- 
sitions.* 

§  467.  Election  in  Opposition  thereto. — The  only  difficulty 
arises  when  the  party  upon  whom  the  condition  rests  elects 
to  take  against  the  will.  In  such  case  he  retains  his  own 
estate,  which  the  will  had  assumed  to  bestow  upon  the  other 
person,  but  of  course  cannot  claim,  to  its  full  extent  at  least, 
the  testator's  property  which  the  will  had  given  to  himself. 
What  is,  then,  the  import  of  the  tacit  condition?  It  does 
not  say  he  must  take  in  conformity  to  the  will,  or  else  for- 
feit the  testator's  property  given  by  it  to  him.  If  that  were 
the  effect  of  the  condition,  the  forfeited  property  would 
either  descend  to  the  testator's  heir,  or  be  embraced  in  the 
residuary  clause  of  the  will,  and  the  third  person  intended 
by  the  testator  to  be  benefited  would  receive  nothing.  The 
condition  therefore  says  that  he  shall  confirm  the  will,  or 
else,  out  of  the  testator's  property  given  to  him  by  the  will, 

(a)   TIio  toxt  is  cited  in  Penn  v.  Guggenheimer,  76  Va.  839,  846. 


779  CONCilBNING   KT.RCTIOJS .  ^-  -irGT 

he  shall  make  compensation  to  the  third  j>erson,  who  is 
-disappointed  by  his  choice.  The  tacit  condition  imj^osing 
the  obligation  of  an  election  upon  one  party  contrives  a 
means  of  satisfying  the  substantial  rights  of  both  parties, 
by  compelling  full  equity  to  be  done.  This  import  of  the 
condition  imposed  upon  the  donee  who  is  to  make  the  elec- 
tion is  well  stated  in  the  following  conclusions  reached  by 
Mr.  Swanston,  after  a  review  of  the  authorities,  in  his  well- 
known  note  to  Gretton  v.  Haward/  viz. : — 

1.  That  in  the  event  of  an  election  to  take  against  the 
instrument,   courts   of  equity  assume  jurisdiction  to   se- 

1  Gretton  v.  Haward,  1  Swanst.  409,  433,  441.  The  doctrine  is  ably  stated 
in  the  following  opinion  of  Sir  Thomas  Plumer,  M.  K..,  in  this  case,  which 
has  always  been  regarded  as  a  leading  one  (p.  423)  :  "Few  cases  are  to  be 
found  on  the  subject,  but  it  must  be  acknowledged  that  the  language  of  the 
^reat  judges  by  whom  it  has  been  discussed  proceeds  to  the  extent  of  ascrib- 
ing to  the  court  an  equity  to  lay  hold  on  the  estate  thus  taken  from  the  devisee 
by  the  principle  of  election,  and  dispose  of  it  in  favor  of  those  whom  he  has 
■disappointed;  not  merely  taking  it  from  one,  but,  such  is  the  uniform  doctrine, 
bestowing  it  on  the  other,  —  a  doctrine  not  confined  to  instances  in  which  the 
heir  is  put  to  election,  and  which  may  be  said  to  bring  him  within  the  opera- 
tion of  the  general  principle,  but  prevailing  as  a  universal  rule  of  equity,  by 
which  the  court  interferes  to  supply  the  defect  arising  from  the  circumstance 
of  a  double  devise,  and  the  election  of  the  party  to  renounce  the  estate  effec- 
tually devised;  and  instead  of  permitting  that  estate  to  fall  into  the  channel 
of  descent,  or  to  devolve  in  any  other  way,  lays  hold  of  it,  to  use  the  expres- 
sion of  the  authorities,  for  the  purpose  of  making  satisfaction  to  the  dis- 
appointed devisee,  —  a  very  singular  office ;  for  in  ordinary  cases,  where  a 
legatee  or  devisee  is  disappointed,  the  court  cannot  give  relief,  but  here  it 
interposes  to  assist  the  party  whose  claim  is  frustrated  by  election.  Such 
is  the  language  of  Lord  Chief  Justice  De  Grey,  cited  with  approbation  by 
(Lord  Loughborough:  'The  equity  of  this  court  is  to  sequester  the  devised 
estate  quousque  till  satisfaction  is  made  to  the  disappointed  devisee.'  I  con- 
ceive it  to  be  the  universal  doctrine  that  the  court  possesses  power  to  sequester 
the  estate  till  satisfaction  has  been  made,  not  permitting  it  to  devolve  in  the 
customary  course.  Out  of  that  sequestered  estate  so  much  is  taken  as  ia 
requisite  to  indemnify  the  disappointed  devisee;  if  insufficient,  it  is  left  in 
his  hands.  In  the  case  to  which  I  have  referred.  Lord  Loughborough  uses  the 
expression  that  the  court  '  lays  hold  of  what  ia  devised,  and  makes  compen- 
sation out  of  that  to  the  disappointed  party.'  ...  It  would  be  too  much 
now  to  dispute  this  principle,  established  more  than  a  century,  merely  on  the 
ground  of  difficulty  in  reducing  it  to  practice,  and  disposing  of  the  estate  taken 
from  the  heir  at  law  without  any  will  to  guide  it;  for  to  this  purpose  there 
is  no  will;  the  will  destined  to  the  devisee,  not  this  estate,  but  another;  he 
takes  by  the  act  of  the  court  (an  act  truly  described  as  a  strong  operation)  ; 
©ot  by  descent,  not  by  devise,  but  by  decree,  —  a  creature  of  equity." 


§  468  EQUITY   JURISPRUDENCE.  780' 

quester  the  benefits  intended  for  the  refractory  donee,  in 
order  to  secure  compensation  to  those  whom  his  election 
disappoints. 

2.  That  the  surplus  after  compensation  does  not  devolve, 
as  undisposed  of,  but  is  restored  to  the  donee,  the  purpose 
being  satisfied  for  which  alone  the  court  controlled  his 
legal  right. 

§  468.  Compensation  the  Result. —  In  this  general  exami- 
nation of  the  doctrine  there  remains  one  more  question  to 
be  considered.  In  any  case  for  an  election,  where  the  party 
upon  whom  the  necessity  devolves  elects  to  take  in  opposi- 
tion to  the  instrument  of  donation,  and  therefore  retains 
his  own  estate  which  had  been  bestowed  upon  the  third  per- 
son, does  he  thereby  lose  all  claim  upon  or  benefit  of  the 
donor's  property  given  to  himself?  or  does  he  only  lose 
such  part  of  it  or  so  much  of  its  value  as  may  be  needed 
to  indemnify  the  disappointed  third  person?  In  adjusting 
the  equities  between  himself  and  the  third  person,  must 
he  necessarily  surrender  to  that  person  the  entire  gift  made 
to  himself?  or  must  he  simply  make  adequate  compensation? 
Few,  if  any,  of  the  cases  have  required  a  decision  of  this 
question  ;^  and  what  has  been  said  concerning  it  has  chiefly 

1  The  reason  is  very  plain.  A  person  compelled  to  elect  will  generally  be 
influenced,  in  making  the  election,  solely  by  his  own  pecuniary  interests.  If 
the  property  bequeathed  to  himself  by  a  will  is  more  valuable  than  his  own, 
he  naturally  elects  to  take  under  the  will,  and  lets  his  own  estate  go  to  the 
third  person.  If  the  property  bequeathed  to  himself  be  less  valuable  than  his 
own,  he  elects  to  take  against  the  will,  and  retains  his  own.  It  is  then  of  no 
consequence  whether  the  principle  adopted  with  reference  to  the  bequest  made 
to  himself  be  forfeiture  or  compensation,  since  the  whole  subject-matter  is 
insuHiciont  to  indemnify  the  disappointed  legatee.  In  other  words,  the  third 
person  takes  all  the  bequest  in  question,  and  must  be  satisfied  with  it,  for 
he  has  no  right  to  anything  more.  The  question  would  arise  in  such  a  casf 
as  the  following:  A  testator  bequeaths  fifty  thousand  dollars  to  A,  and  d«> 
vises  to  13  an  old  family  estate  of  which  A  is  owner  in  fee,  and  which  is  worth 
only  twenty  thousand  dollars.  A,  from  attachment  to  the  family  estate, 
elects  to  keep  it,  and  thus  to  take  in  opposition  to  the  will.  Is  B  then  en- 
titlfd  to  the  whole  fifty  thousand  dollars?  or  only  to  twenty  thousand  dollars 
of  it,  —  the  value  of  the  estate  which  he  loses  by  the  election,  —  so  that  the 
balance  of  thirty  tliousand  dollars  would  still  belong  to  A  ?  The  latter  alterna- 
tive is  the  view  taken  l)y  the  weight  of  authority.» 

(»)  Tills  note  is  cited  in  Barrier  v.   Kelly    (Miss.),  33  South.  974. 


781  CONCERNING    ELECTION.  §  468 

been  by  way  of  argument  and  of  judicial  dictum.  The  rule 
may  be  regarded,  however,  as  settled  by  the  weight  of 
judicial  opinion  very  strongly  in  favor  of  compensating  the 
donee  who  is  disappointed  by  an  election  against  the  instru- 
ment. If  the  gift  which  he  takes  by  way  of  substitution  is 
not  sufficient  in  value  to  indemnify  him  for  that  which  he 
has  lost,  he  of  course  retains  the  whole  of  it.^ " 

2Gietton  V.  Haward,  1  Swanst.  409,  423,  433,  441.  See  opinion  of  Sir  T. 
Plumer,  M.  R.,  and  note  of  Air.  Swanston,  quoted  ante,  §  467;  Rogers  v.  Jones, 
3  Ch.  Div.  688;  Piekersgill  v.  Rodger,  5  Ch.  Div.  163,  173.  In  Rogers  v. 
Jones,  3  Ch.  Div.  688,  under  the  peculiar  circumstances  of  the  case,  the  ques- 
tion was  actually  decided,  and  the  opinion  was  not  a  dictum.  Jessel,  M.  R., 
said  (p.  689):  "The  doctrine  of  election  is  this:  that  if  a  person  whose 
property  a  testator  affects  to  give  away  takes  other  benefits  under  the  same 
will,  and  at  the  same  time  elects  to  keep  his  own  property,  he  must  make  com- 
pensation to  the  person  affected  by  his  election  to  an  extent  not  exceeding 
the  benefits  he  receives."  In  Piekersgill  v.  Rodger,  5  Ch.  Div.  163,  173,  Jessel, 
M.  R.,  speaking  of  a  son  of  a  testatrix  to  whom  she  had  devised  property,  says 
(p.  173)  :  "Consequently,  as  between  his  (the  son's)  estate  and  her  disap- 
pointed legatees,  her  disappointed  legatees  are  entitled  to  put  his  estate  to  an 
election;  that  is,  any  disappointed  legatee  is  entitled  to  say,  'You  shall  not 
have  the  benefit  given  to  your  estate  by  the  will,  unless  I  have  made  up  to  me 
an  equivalent  benefit  to  that  which  the  testatrix  intended  me  to  take.'  Some- 
times this  is  called  the  doctrine  of  compensation,  lohlch  is  the  meaning  of  the 
doctrine  of  election  as  it  now  stands.  The  disappointed  legatee  may  say  to 
the  devisee,  '  You  are  not  allowed  by  a  court  of  equity  to  take  away  out  of 
the  testatrix's  estate  that  which  you  would  otherwise  be  entitled  to,  until  you 
have  made  good  to  me  the  benefit  she  intended  for  me.'  That  means  that 
no  one  can  take  the  property  which  is  claimed  under  the  will  without  making 
good  the  amount;  or  in  other  words,  as  between  the  devisees  and  legatees 
claiming  under  the  will,  the  disappointed  legatees  are  entitled  to  sequester 
or  to  keep  back  from  the  other  devisees  or  legatees  the  property  so  devised 
and  bequeathed,  until  compensation  is  made.  Thence  arises  the  doctrine  of 
an  equitable  charge  or  right  to  realize  out  of  that  property  the  sum  required 
to  make  the  compensation.  If  you  follow  out  that  doctrine,  you  will  see  that 
the  person  taking  the  property  so  devised  or  bequeathed  takes  it  subject  to  an 
obligation  to  make  good  to  the  disappointed  legatee  the  sum  he  is  disappointed 
of.  The  very  instrument  which  gives  him  the  benefit  gives  him  the  benefit 
burdened  with  the  obligation,  and  the  old  maxim.  Qui  sentit  commodum  sentire 
debet  et  onus,  applies  with  the  greatest  force  to  such  a  case  as  this."  The 
doctrine  is  here  explained  by  the  able  master  of  rolls  with  his  usual  clearness 
and  precision.  The  concluding  sentences  of  the  passage  fully  sustain  the  view 
maintained  by  me,  that  the  whole  doctrine  is  derived  from  the  principle.  He 

(b)  This  paragraph  of  the  text  is  597,   40   Am.   St.    Rep.    532,   29    Atl. 

cited     and     followed     in     Brown     v.  187;    Barrier   v.    Kelly     (Miss.),    33 

Brown,  42  Minn.  270,  44  N.  W.  250;  South.    974.      See    also   Hamilton    v. 

Hattersley  v.  Bissett,  51   N.  J.   Eq.  Hamilton  [1892],  1  Ch.  396. 


§  469  EQUITY    JURISPRUDENCE.  782 

§  469.  A  Fund  from  Which  Compensation  can  be  Made^ 
Essential. —  As  the  doctrine  of  election  thus  depends  upoD 
the  principle  of  compensation,  if  follows  as  a  necessary  con- 
sequence that  it  will  not  be  applicable  in  any  case  unless 
there  is  a  fund  given  to  the  donee  who  is  compelled  to  elect, 
from  which  a  compensation  can  be  made  to  the  disappointed 
parties,  or  which  perhaps  can  be  transferred  as  a  whole  to 
such  parties.  Thus  in  a  case  where,  under  a  power  to  ap- 
point to  children,  the  father  made  an  appointment  im- 
properly, it  was  held  by  Lord  Ijoughborough  that  any  child, 
entitled  in  default  of  an  appointment,  might  set  it  aside, 
although  a  specific  share  had  been  appointed  to  him;  in 
other  words,  that  no  election  was  necessary.     The  lord 

who  seeks  equity  must  do  equity.  In  Howells  v.  Jenkins,  1  De  Gex,  J.  &  S. 
617,  619,  Turner,  L.  J.,  stated  this  doctrine:  "The  true  principle  appears  to 
me  to  be,  that  where  a  person  elects  to  take  against  a  will,  the  persons  who  are 
disappointed  by  that  election  are  entitled  to  compensation,  out  of  the  benefits 
given  to  him  by  the  will,  in  proportion  to  the  value  of  the  interests  of  which 
they  are  disappointed."  See  also  the  following  cases,  which,  either  by  judi- 
cial dicta  or  by  decision,  sustain  the  rule  as  to  compensation:  Streatfield  v. 
Streatfield,  Cas.  t.  Talb.  176;  Webster  v.  Metford,  2  Eq.  Cas.  Abr.  303;  Bor  v. 
Bor,  3  Brown  Pari.  C,  Tomlins's  ed..  167;  Ardesoife  v.  Bennett,  1  Dick.  463; 
Lewis  v.  King,  2  Bro%vn  Ch.  600;  Freke  v.  Barrington,  3  Brown  Ch.  274,  284; 
Whistler  v.  Webster,  2  Ves.  367 ;  Ward  v.  Baugh,  4  Ves.  623 ;  Lady  Caven  v. 
Pulteney,  2  Ves.  544,  560;  Blake  v.  Bunbury,  1  Ves.  514,  523;  Welby  v.  Welby, 
2  Ves.  &  B.  190,  191;  Dashwood  v.  Peyton,  18  Ves.  27,  49;  Tibbits  v.  Tibbits, 
Jacob,  317;  Lord  Rancliffe  v.  Parkyns,  0  Dow.  149,  179;  Ker  v.  Wauchope,  I 
Bligh,  1,  25;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Greenwood  v.  Penny,  12 
Beav.  403;  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291;  Spread  v.  Morgan,  11  H.  L. 
Cas.  588;  CaulTman  v.  Cauflman,  17  Serg.  &  R.  16,  24,  25;  Philadelphia  v. 
Davis,  1  Whart.  490,  502;  Stump  v.  Findlay,  2  Rawle,  168,  174,  19  Am.  Dec. 
032;  Lewis  v.  Lewis,  13  Pa.  St.  79,  82,  53  Am.  Dec.  443;  Van  Dyke's  Appeal, 
00  Pa.  St.  481,  490;  Sandoe's  Appeal,  65  Pa.  St.  314;  Key  v.  Griffin,  1  Rich. 
Eq.  67;  Marriott  v.  Sam  Badger,  5  Md.  306;  Maskell  v.  Goodall,  2  Disn.  282; 
Roe  V.  Roe,  21  N.  J.  Eq.  253;  Estate  of  Delaney,  49  Cal.  77;  Tiernan  v.  Ro- 
land, 15  Pa.  St.  430,  451;  Wilbanks  v.  Wilbanks,  18  111.  17.c     Lapse  of  time, 

(c)  See  also  Estate  of  Vance,  141  will,  either  because  such  interest  ia 
Pa.  St.  201,  12  L.  R.  A.  227,  33  Am.  not  assignable  or  because  the  assign- 
St.  Rep.  267,  21  Atl.  643.  The  doctrine  mont  of  it  would  involve  a  breach  ol 
of  compensation  does  not  apply  to  the  trust,  the  court  will  not  award  corn- 
case  of  a  person  electing  to  take  un-  pensation  to  the  disappointed  lega- 
der  the  will;  thus,  where  the  person  tee:  In  re  Lord  Chesham,  L.  R.  31 
HO  electing  cannot  assign  his  inter-  Ch.  Div.  466. 
est,  for  the  purpose  of  confirming  the 


783  CONCERNING   ELECTION.  §    47C 

chancellor  said:  '*  The  doctrine  of  election  never  can  be 
applied  but  where,  if  an  election  is  made  contrary  to  the  will, 
the  interest  that  would  pass  by  the  will  can  be  laid  hold  of 
to  compensate  for  what  is  taken  away ;  therefore,  in  all  cases 
there  must  be  some  free,  disposable  property  given  to  the 
person,  which  can  be  made  a  compensation  for  what  the  tes- 
tator takes  away."  ^  This  is  not,  however,  any  new  and  ad- 
ditional requisite ;  it  is  merely  a  statement,  in  a  somewhat 
different  form,  of  the  fundamental  doctrine,  that,  in  order 
to  create  the  necessity  for  an  election,  the  donor  must  give 
to  B  some  property  which  actually  belongs  to  A,  and  must 
at  the  same  time  give  to  A  some  property  of  his  own.* 

§  470.  Doctrine  Applies  Both  to  Wills  and  Deeds. —  It  may 
be  added  that  the  doctrine  of  election,  as  generally  described 
in  the  foregoing  paragraphs,  applies  to  all  instruments  of 
donation, —  to  deeds,  settlements,  and  the  like,  as  well  as  to 
wills, —  although  the  cases  involving  it  have  most  fre- 
quently   arisen    under   wills.^ "    It   is    also    applicable   to 

and  the  interests  of  third  persons  who  have  purchased,  may  render  an  elec- 
tion absolute,  and  prevent  a  payment  of  compensation,  instead  of  the  prop- 
erty itself.    See  Fulton  v.  Moore,  25  Pa.  St.  468,  476. 

The  following  are  the  most  important  cases  and  text-writers  containing 
dicta  in  favor  of  the  rule  that,  by  an  election  against  a  will,  the  donee  loses 
or  forfeits  his  right  to  all  the  property  of  the  testator  given  to  him:  Cow- 
per  V.  Scott,  3  P.  Wms.  124;  Cookes  v.  Hellier,  1  Ves.  235;  Morris  v.  Bur- 
roughs, 1  Atk.  404;  Pugh  v.  Smith,  2  Atk.  43;  Wilson  v.  Mount,  3  Ves.  194; 
Wilson  v.  Townsend,  2  Ves.  697;  Broome  v.  Monck,  10  Ves.  609;  Thellusson 
V.  Woodford,  13  Ves.  220;  Villareal  v.  Lord  Galway,  1  Brown  Ch.  292,  note; 
Green  v.  Green,  2  Mer.  86;  also  note  by  Mr.  Jacob,  in  his  edition  of  Roper  on 
Husband  and  Wife,  vol,  1;  and  Lord  St.  Leonards,  in  2  Sugden  on  Powers, 
7th  ed.,  145.  Many  of  these  cases  are  no  doubt  to  be  explained  by  the  fact 
that  ordinarily  when  a  donee  elects  to  take  against  the  will,  and  thus  to  re- 
tain his  own  property,  the  gift  to  himself  made  by  the  testator  is  not  of  suffi- 
cient value  to  indemnify  the  disappointed  parties,  and  of  course  they  then 
take  it  all,  and  there  is  no  possible  room  for  any  compensation. 

§  469,  1  Bristow  v.  Warde,  2  Ves.  336.  See  also  In  re  Fowler's  Trusts,  27 
Beav.  362;  Box  v.  Barrett,  L.  R.  3  Eq.  244;  Banks  v.  Banks,  17  Beav.  352; 
Blacket  v.  Lamb,  14  Beav.  482;  Langslow  v.  Langslow,  21  Beav.  552. 

§  470,  1  Llewellyn  v.  Mackworth,  Barn.  Ch.  445 ;  Bigland  v.  Huddleston,  3 
Brown  Ch.  286,  note;  Moore  v.  Butler,  2  Schoales  &  L.  266;  Birmingham  v.  Kir- 

§  469,   (a)   The  text  is  quoted  and  §    470,     (a)     See    also    Barrier    v. 

illustrated    in    Hunter    v.    Mills,    29        Kelly   (Miss.),  33  South.  974. 
S,  C.  72,  6  S.  E.  907. 


§§  471,  472        EQUITY  JUKISPRUDENCB.  784 

interests  which  are  remote,  contingent,  partial,  or  of  small 
value,  as  well  as  to  those  which  are  immediate,  certain, 
complete,  and  of  great  value.^ 

§  471.  Applications  —  Cases  for  an  Election  Classified. — 
Having  thus,  according  to  the  arrangement  announced  in  a 
former  paragraph,  explained  the  origin,  general  scope, 
meaning,  and  effect  of  the  doctrine,  I  shall  now  proceed  to 
consider  it  with  respect  to  its  practical  applications,  its 
limitations,  and  exceptions.  In  other  words,  I  shall  describe 
the  particular  cases  in  which  the  necessity  for  an  election 
does  or  does  not  arise,  and  the  rules  which  determine  and 
regulate  them.  In  pursuing  this  branch  of  the  subject,  I 
shall  state  first  in  order  those  rules  which  are  universal  in 
their  application,  and  in  determining  the  necessity  for  an 
election  or  not  in  all  instances,  and  shall  then  enumerate  and 
classify  the  cases  which  have  been  settled  by  the  courts  in 
pursuance  of  these  rules. 

§  472.  Fundamental  Rule. —  The  first  and  fundamental 
rule,  of  which  all  the  others  are  little  more  than  corollaries, 
is:  In  order  to  create  the  necessity  for  an  election,  there 
must  appear  upon  the  face  of  the  will  itself,  or  of  the  other 
instrument  of  donation,  a  clear,  unmistakable  intention,  on 
the  part  of  the  testator  or  other  donor,  to  dispose  of  prop- 
erty which  is  in  fact  not  his  own.  This  intention  to  dis- 
pose of  property  which  in  fact  belongs  to  another,  and  is 
not  within  the  donor's  power  of  disposition,  must  appear 
from  language  of  the  instrument  which  is  unequivocal, 
which  leaves  no  doubt  as  to  the  donor's  design ;  the  necessity 
of  an  election  can  never  exist  from  an  uncertain  or  dubious 

wan,  2  Schoales  &  L.  450;  Green  v.  Green,  2  Mer.  8G;  Bacon  v.  Cosby,  4  De  Gex 
&  S.  20 1;  Gumming  v.  Forrester,  2  Jacob  &  W.  345;  Anderson  v.  Abbott,  23 
Beav.  457;  Moslcy  v.  Ward,  29  Beav.  407.  The  cases  of  election  so  frequently 
arise  from  wills  that  the  general  rules  concerning  it  have  sometimes  been 
laid  down,  especially  by  American  courts,  in  language  which  appears  to  con- 
fine it  to  those  instruments. 

2  Webb  V.  Earl  of  Shaftshury,  7  Ves.  480;  Greaves  v.  Forman,  cited  3  Ves. 
67;  Iligliway  v.  llanncr,  1  Brown  Ch.  584;  Wilson  v.  Townshend,  2  Ves.  697; 
but  see  Bor  v.  Bor,  3  Brown  Pari.  C.,  Tomlina's  ed.,  178,  note,  per  Lord  Hard' 
wicke. 


785  CONCERNING    ELECTION.  §    472 

interpretation  of  tlie  clause  of  donation.'  It  is  the  settled 
rule  that  no  case  for  an  election  arises  unless  the  gift  to  one 
beneficiary  is  irreconcilable  with  an  estate,  interest,  or 
right  which  another  donee  is  called  upon  to  relinquish;  if 
both  gifts  can,  upon  any  interpretation  of  which  the  lan- 
guage is  reasonably  susceptible,  stand  together,  then  an 
election  is  unnecessary.  The  instrument  may  declare  in 
express  terms  that  the  gift  to  A  must  be  accepted  by  him  in 
lieu  of  his  own  interest,  which  is  thereby  transferred  to  B, 
and  then  no  possible  doubt  could  exist.  But  this  direct  mode 
of  exhibiting  the  donor's  purpose  is  not  indispensable.  It 
is  sufficient  if  the  dispositions  of  the  instrument,  fairly  and 
reasonably  interpreted,  exhibit  a  clear  intention  of  the  donor 
to  bestow  upon  B  some  estate,  interest,  or  right  of  property, 
which  is  not  the  donor's,  but  which  belongs  to  A,  and  at  the 
same  time  to  give  to  A  some  benefits  derived  from  the 
donor's  own  property.^  ^   It  is  immaterial,  however,  whether 

1  Forrester  v.  Cotton,  1  Eden,  531;  Judd  v.  Pratt,  13  Ves.  168,  15  Ves.  390; 
Dashwood  v.  Peyton,  18  Ves.  27;  Blake  v.  Bunbury,  1  Ves.  514,  4  Brown  Ch- 
21;  Rancliflfe  v.  Lady  Parkyns,  6  Dow,  149,  179;  Dillon  v.  Parker,  1  Swanst. 
359,  Jacob,  505,  7  Bligh,  N.  S,,  325,  1  Clark  &  F.  303;  Jervoise  v.  Jervoise,  17 
Beav.  566;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Lee  v.  Egremont,  5  De  Gex 
&  S.  348;  VVintour  v.  Clifton,  21  Beav.  447,  8  De  Gex,  M.  &  G.  641;  Stephens 
V.  Stephens,  3  Drew.  697,  1  De  Gex  &  J.  62;  Box  v.  Barrett,  L.  R.  3  Eq.  244; 
Dumnier  v.  Pitcher,  2  Mylne  &  K.  262 ;  Shuttleworth  v.  Greaves,  4  Mylne  &  C. 
35;  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705,  16  Beav.  106;  Pickersgill  v. 
Rodger,  5  Ch.  Div.  163,  170;  Orrell  v.  Orrell,  L.  R.  6  Ch.  302,  304;  Wilkinson 
V.  Dent,  L.  R,  6  Ch.  339,  340;  Thompson  v.  Burra,  L.  R.  16  Eq.  592,  601;  Wol- 
laston  V.  King,  L.  R.  8  Eq.  165;  Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407;  Codring- 
ton  V.  Lindsay,  L.  R.  8  Ch.  578;  McElfresh  v.  Schley,  2  Gill,  182,  201;  Jones 
V.  Jones,  8  Gill,  197;  Waters  v.  Howard,  1  Md.  Ch.  112;  Hall  v.  Hall,  1  Bland, 
130,  135;  Wilson  v.  Amy,  1  Dev.  &  B.  Eq.  376,  377;  Pennsylvania  Life  Ins. 
Co.  V.  Stokes,  61  Pa.  St.  136,  2  Brewst.  590;  Weeks  v.  Weeks,  77  N.  C.  421; 
Havens  v.  Sackett,  15  N.  Y.  365;  Thompson  v.  Thompson,  2  Strob.  Eq.  48; 

(a)  The  text  is  quoted  in  Penn  v.  where  the  donor  does  not  attempt  to 
Guggenheimer,  76  Va.  839,  846.  dispose  of  property  not  his  own.     See 

(b)  The  text  is  cited  in  Bible  v.  also,  in  general,  Wooley  v.  Schrader, 
Marshall,  103  Tenn.  324,  52  S.  W.  116  111.  29,  4  N.  E.  658;  Hattersley 
1077;  and  Fifield  v.  Van  Wyck,  94  v.  Bissett,  51  N.  J,  Eq.  597,  40  Am. 
Va.  557,  562,  64  Am.  St.  Rep.  745,  27  St.  Rep.  532,  29  Atl.  187;  Matter  of 
S.  E.  446;  both  to  the  ef^oct  that  Zahrt,  94  N.  Y.  005;  Asche  v.  Asche, 
no  case  is   presented   for  an  election  113  N.  Y.  232,  21  N.  E.  70. 

Vol.  1  —  50 


§    472  EQUITY   JUKISPEUDENCB.  786 

the  donor  knew  the  property  not  to  be  his  own,  or  errone- 
ously conceived  it  to  be  his  own;  for  in  either  case,  if  the 

O'Reilly  v.  Nicholson,  45  Mo.  160.  The  ground  upon  which  the  doctrine  of 
election  rests,  and  the  condition  of  facts  necessary  to  raise  an  election,  were 
carefully  considered  in  the  recent  case  of  Codrington  v.  Lindsay,  L.  R.  8  Ch. 
578,  587,  by  Lord  Selborne.  He  seems  to  reach  the  conclusion  that  there  are 
two  grounds,  and  two  conditions  of  fact  quite  distinct  from  each  other,  which 
may  create  the  necessity  for  an  election.  It  was  held  that  a  married  woman 
was  bound  to  elect  between  certain  benefits  given  to  her  by  a  marriage  settle- 
ment and  certain  property  of  her  own  to  which  she  was  entitled  independently 
of  the  settlement,  but  which  had  been  embraced  within  its  terms.  Lord  Chan- 
cellor Selborne  thus  laid  down  the  general  doctrine  (pp.  586-588):  "I  lay 
aside,  as  not  directly  relevant  to  the  present  question,  the  .whole  of  that  large 
class  of  cases  of  election  upon  wills,  as  to  which  Lord  Eldon,  in  Dashwood  v. 
Peyton,  18  Ves.  41,  and  other  authorities,  have  said  that  '  a  clear  intention 
on  the  part  of  the  testator  to  give  that  which  is  not  his  property  is  always 
required.'  ...  I  conceive  the  true  rule  for  the  decision  of  this  case  to  be 
that  which  is  so  well  stated  by  Lord  Redesdale  in  Birmingham  v.  Kirwan,  2 
Schoales  &  L.  444,  449,  viz. :  '  The  general  rule  is,  that  a  person  cannot  ac- 
cept and  reject  the  same  instrument;  and  this  is  the  foundation  of  the  law 
of  election,  on  which  courts  of  equity  particularly  have  grounded  a  variety  of 
decisions  in  cases  both  of  deeds  and  wills,  though  principally  in  cases  of  wills, 
because  deeds  being  generally  matter  of  contract,  the  contract  is  not  to  be 
interpreted  otherwise  than  as  the  consideration  which  is  expressed  requires.* 
The  application  of  this  rule  is  illustrated  as  to  cases  of  voluntary  deeds  by 
Llewellyn  v.  Mackworth,  Barn.  Ch.  445,  and  Anderson  v.  Abbott,  23  Beav, 
457 ;  as  to  cases  of  contract  for  a  valuable  consideration  resting  in  articles,  by 
Savill  V.  Savill,  2  Coll.  C.  C.  721,  and  Brown  v.  Brown,  L.  R.  2  Eq.  481;  and 
as  to  contracts  for  value  completely  executed  by  conveyance  and  assignment, 
by  Bigland  v.  Huddleston,  3  Brown  Ch.  285,  note;  Chetwynd  v.  Fleetwood,  4 
Brown  Pari.  C,  ed.  of  1784,  435;  Green  v.  Green,  2  Mer.  86;  Bacon  v.  Cosby, 
4  De  Gex  &  S.  261;  Mosby  v.  Ward,  29  Beav.  407;  and  Willoughby  v.  Middle- 
ton,  2  Johns.  &  H.  344.  In  two  of  these  cases  (Green  v.  Green,  2  Mer.  86, 
and  Willoughby  v.  Middleton,  2  Johns.  &  H.  344),  the  husband's  father  was 
a  party  to  an  antenuptial  settlement,  and  part  of  the  consideration  proceeded 
from  him.  Another  (Chetwynd  v.  Fleetwood,  4  Brown  Pari.  C.  435),  was  a 
case  of  settlement  for  value,  not  between  husband  and  wife  at  all,  nor  in  con- 
sideration of  marriage,  in  all  of  them  the  party  who,  claiming  by  a  title  not 
bound  by  the  deeds,  thereby  withdrew  part  of  the  consideration  for  which  the 
deeds  were  intended  to  be  made  was  held  obliged  to  give  up,  by  way  of  com- 
pennation,  what  he  or  she  was  entitled  to  under  the  deeds,  or  ex  converso  (as 
in  Chetwynd  v.  Fleetwood,  4  Brown  Pari.  C.  435),  was  held  bound,  if  taking 
the  benefit  of  the  deeds,  to  adopt  and  make  good  the  contract  forming  the 
consideration  for  those  benefits,  as  to  matters  by  which,  without  such  election, 
he  would  not  have  been  bound."  To  the  same  effect,  in  Hyde  v.  Baldwin,  17 
Pick.  303,  308,  Shaw,  C.  J.,  said  that  it  was  a  well-settled  rule  in  equity  that 
"  a  man  shall  not  take  any  beneficial  interest  under  a  will,  and  at  the  same 
time  set  up  any  right  or  claim  of  his  own,  even  if  otherwise  legal  and  well 
founded,  which  shall  defeat,  or  in  any  way  prevent,  tho  full  effect  and  opera- 


787  CONCERNING    ELECTION.  §    473 

intention  to  dispose  of  it  clearly  appears,  the  necessity  for 
an  election  exists.^ " 

§  473.  Rule  of  Interpretation;  Donor  has  a  Partial  Interest? 
Strong  Leaning  against  Election;  Extrinsic  Evidence  of  Inten- 
tion.—  The  preceding  rule  is  fundamental  and  universal. 
In  its  application  the  courts  have  settled  two  or  three  im- 
portant rules  of  interpretation,  which  aid  them  in  arriving 
at  the  donor's  intent  in  such  instruments.  Where  the 
interest  of  the  supposed  donee.  A,  with  which  the  donor 
assumes  to  deal,  is  a  separate,  distinct,  certain  estate,  prop- 
erty, or  right  belonging  to  A  individually  and  solely,  and 
the  language  of  donation  identifies  such  estate,  property,. 
or  right,  and  in  terms  of  specific  description  bestows  it  upon 
another  beneficiary,  no  doubt  as  to  the  donor's  intention 
can  exist;  there  is  no  room  for  interpretation;  a  case  of 
election  is  necessarily  presented.  Where,  however,  the- 
subject-matter  upon  which  the  instrument  operates  is- 
something  in  which  the  donor  himself  has  a  partial  interest,- 
and  the  donee  has  also  a  partial  interest  in  it,  or  the  residue' 
of  the  property  in  it,  and  the  language  of  donation  is  sus- 
ceptible of  a  construction  which  would  confine  it  to  this 
partial  interest  of  the  donor,  it  is  plain  that  a  judicial 
interpretation  is  needed  to  ascertain  the  real  intent.  Under 
these  circumstances,  whenever  the  testator  or  other  donor 
has  a  partial  interest  in  the  property  dealt  with,  it  is  well 
settled  that  the  courts  will  lean  most  strongly  —  as  far  as 
possible,  it  has  been  said  —  in  favor  of  an  interpretation 

tion  of  every  part  of  the  will."  See  also  Smith  v.  Guild,  34  Me.  443,  147;. 
Weeks  v.  Patten,  18  Me.  42,  36  Am.  Dec.  696;  Hamblett  v.  Hamblett,  6  N.  H. 
333;  Glen  v.  Fisher,  6  Johns.  Ch.  33,  10  Am.  Dec.  310;  Fulton  v.  Moore,  25 
Pa.  St.  408;  Cauffman  v.  CauflFman,  17  Serg,  &  R.  16;  Preston  v.  Jones,  9  Pa. 
St.  456;  George  v.  Bussing,  15  B.  Mon.  558;  Buist  v.  Dawes,  3  Rich.  Eq.  281. 
2  Cooper  V.  Cooper,  L.  R.  6  Ch.  15,  16,  20;  Grissell  v.  Swinhoe,  L.  R.  7  Eq. 
291;  Whistler  v.  Webster,  2  Ves.  370;  Thellusson  v.  Woodford,  13  Ves.  221; 
Welby  V.  Welby,  2  Ves.  &  B.  199;  Whitley  v.  Whitley,  31  Beav.  173;  Coutts  v. 
Ackworth,  L.  R.  9  Eq.  519;  Stump  v.  Findlay,  2  Rawle,  168,  174,  19  Am.  Dee. 
632;  McGinnis  v.  McGinnis,  1  Ga.  496,  503. 

(c)  See  also  to  the  same  effect  Barrier  v.  Kelly  (Miss.),  33  Soutk. 
Moore   v.    Harper,    27    W.    Va.    362;       974. 


§    473  EQUITY   JURISPRUDENCE.  788 

which  will  confine  his  disposition  to  this  his  own  interest, — 
an  interpretation  which  will  show  an  intention  on  his  part  to 
deal  only  by  way  of  gift  with  this  partial  interest  which  he 
holds.  In  other  words,  the  difiSculty  of  establishing  a  case 
for  an  election,  from  the  terms  of  a  donation^  is  much 
greater  where  the  donor  has  a  partial  interest  in  the  prop- 
erty bestowed,  than  where  he  assumes  to  give  an  estate  in 
which,  as  a  matter  of  fact,  he  has  no  interest.^ '  If  the 
language  of  the  donation  is  ambiguouSj  so  that  its  correct 
interpretation  is  at  all  doubtful,  it  is  now  a  firmly  estab- 
lished rule  that  parol  evidence  of  matters  outside  the  instru- 
ment cannot  be  admitted  for  the  purpose  of  showing  an 
intent  of  the  donor  to  dispose  of  property  which  he  knew 
did  not  belong  to  him,  and  thus  to  create  the  necessity  for 
an  election.  The  intent  of  the  donor  to  dispose  of  that 
which  is  not  his  ought  to  appear  upon  the  instrument.  There 
were  early  decisions  which  acted  upon  another  view,  and 
received  such  e\"idence  as  controlling,  but  they  have  been 
completely  overruled  by  subsequent  authorities.  Of  course, 
extrinsic  evidence  is  always  admissible  in  such  cases,  as  well 
as  in  all  others  arising  upon  wills  and  deeds,  in  order 
to  show  the  surrounding  circumstances,  the  nature  and  situ- 
ation of  the  property,  the  relations  of  the  donor  to  the  bene- 

1  Lord  Rancliffe  v.  Lady  Parkyns,  6  Dow,  185;  Maddison  v.  Chapman,  1 
Johns.  &  H.  470;  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650,  per  Turner, 
L.  J.;  Havens  v.  Sackett,  15  N.  Y.  365.  In  Wintour  v.  Clifton,  8  De  Gex,  M. 
&  G,  641,  650,  Turner,  L.  J.,  said:  "The  authorities,  as  I  understand  it, 
mean  no  more  than  to  point  out  forcibly  the  difficulty  there  is  in  raising  a 
case  of  election  where  the  testator  has  a  limited  interest  in  the  property  as 
to  which  the  election  is  to  be  raised;  and  no  doubt  there  is  more  difficulty 
in  such  cases  than  in  the  ordinary  case  of  the  disposition  of  an  estate  belong- 
ing to  another  person,  and  in  which  the  testator  had  no  interest,  inasmuch  as 
every  testator  must  prima  facie  be  taken  to  have  intended  to  dispose  only 
of  what  he  had  power  to  dispose  of;  and,  as  in  order  to  raise  a  case  of  elec- 
tion, it  must  be  clear  that  there  was  an  intention  on  the  part  of  the  testator 
to  dispose  of  what  he  had  not  the  right  or  power  to  dispose  of."  See  also 
cases  in  preceding  note,  and  those  cited  subsequently,  under  the  head  of  elec- 
4ion,  in  case  of  dower  and  other  partial  interests. 

(a)  The  text  is  quoted  in  Toney  v.  Sherman  v.  Lewis,  44  Minn.  107,  46 
Sprugins,    80    Ala.    541.      See,    also,       N.  W.  318. 


789  CONCERNING   ELECTION.  §    474 

ficiaries,  and  the  like  facts,  which  place  the  court  in  the 
shoes  of  the  donor ;  but  such  evidence  can  go  no  further.^  ^ 
§  474,  Rule  of  Interpretation:  Donor  has  a  Partial  Interest^ 
and  Makes  a  General  Gift. —  A  second  important  rule  of  in- 
terpretation is,  that  where  a  testator  has  a  partial  interest 
in  the  subject-matter  dealt  with,  a  general  devise  of  the 
property,  or  gift  of  the  property  described  only  in  general 
terms  or  in  a  general  manner,  will  ordinarily  be  construed 
as  including  and  operating  upon  the  partial  interest  alone 
or  partial  property  held  by  the  donor,  and  not  as  extending 
to  and  disposing  of  the  residuum  of  interest  belonging  to 
the  donee.  But  it  should  also  be  observed  that  even  where 
the  language  of  the  gift  is  thus  general,  the  donor  may 
otherwise  show  an  intention  by  means  of  it  to  bestow  thfe 
property  or  interest  not  absolutely  his  own.^  * 

2Clementson  v.  Gandy,  1  Keen,  309;  Smith  v.  Lyne,  2  Younge  &  C.  Ch.  345 j. 
Honeywood  v.  Forster,  30  Beav.  14;  Seaman  v.  Woods,  24  Beav.  372;  Allen. 
V.  Anderson,  5  Hare,  163;  Blake  v.  Bunbury,  1  Ves.  523;  Stratton  v.  Best,  1 
Ves.  285;  Druce  v.  Denison,  6  Ves.  385;  Dummer  v.  Pitcher,  2  Mylne  &  K. 
262;  Crabb  v.  Crabb,  1  Mylne  &  K.  511,  5  Sim.  25;  Philadelphia  v.  Davis,  1 
Whart.  490;  Timberlake  v.  Parish,  5  Dana,  345;  Waters  v.  Howard,  1  Md. 
Ch.  112;  McElfresh  v.  Schley,  2  Gill,  182;  Jones  v.  Jones,  8  Gill,  197.  Not- 
withstanding this  array  of  unanimous  authorities,  in  the  very  recent  case  of 
Pickersgill  v.  Rodger,  5  Cb.  Div.  163,  170,  where  the  only  question  for  de- 
cision was  whether  a  testatrix  had  created  the  necessity  for  an  election,  the 
very  able  and  learned  master  of  rolls,  Jessel,  used  the  following  language: 
"  The  law  upon  this  point  I  take  to  be  well  settled,  and  it  is  this:  that  before 
you  attribute  an  intention  to  a  testator  or  testatrix  to  dispose  of  that  which 
does  not  belong  to  him  or  her,  you  must  be  satisfied  from  the  form  of  the  in- 
Btrument  that  it  does  dispose  of  the  property  which  does  not  belong  to  him 
or  her;  and  that  is  all.  The  presumption,  in  the  absence  of  evidence  to  the 
contrary,  is,  that  the  testator,  by  his  will,  intends  merely  to  devise  or  be- 
queath that  which  belongs  to  him.  On  tha  other  hand,  it  is  only  a  presump- 
tion, which  may  be  rebutted  even  by  parol  evidence;  and  it  may  be  rebutted 
by  evidence  showing  that,  under  a  misapprehension  of  law,  the  testator  be- 
lieved that  the  property  which  did  not  belong  to  him  did  really  belong  to 
him."  It  is  certainly  difficult  to  reconcile  this  passage  with  the  decisiona- 
cited  above  in  this  note. 

iWintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Shuttleworth  v.  Greaves, 
4  Mylne  &  C.  35 ;  Dummer  v.  Pitcher,  2  Mylne  &  K.  262 ;  Usticke  v.  Peters,  4 

(b)    Sherman  v.  Lewis,   44  Minn.  (a)  In  re  Gilmore,  81  CaL  240,  2a 

107,  46  N.  W.   318;   Tracey  v.   Shu-       Pac.  656. 
mate,  22  W.  Va.  474,  499;   Atkinson 
V.  Sutton,  23  W.  Va.  197. 


^    475  EQUITY   JURISPRUDENCE.  790 

§  475.  Other  Particular  Rules  of  Interpretation. —  In  addi- 
tion to  these  somewhat  general  rules  of  interpretation, 
there  are  one  or  two  particular  rules  which  belong  to  this 
branch  of  the  subject.  No  case  for  an  election  is  presented 
if  the  language  of  donation  shows  that  the  donor  is  doubt- 
Kay  &  J.  437;  Honeywood  v.  Forster,  30  Beav.  14;  Johnson  v.  Telford,  1  Kuss. 
&  M.  244;  Erodie  v.  Barry,  2  Ves.  &  B.  127;  Maxwell  v.  Maxwell,  2  De  Gex, 
M.  &  G.  705,  713;  16  Beav.  106;  Orrell  v.  Orrell,  L.  R.  6  Ch.  302;  Havens  v. 
Sackett,  15  N.  Y.  365;  Hall  v.  Hall,  1  Bland,  130,  135;  Gable  v.  Daub,  40  Pa. 
St.  217.  And  see  cases  cited  subsequently,  under  the  head  of  election  in  case 
of  dower.b  Although  the  rule  as  stated  in  the  text  is  supported  by  an  over- 
whelming weight  of  authority,  it  is  sometimes   very  ditiicult  of  application. 

1  shall  therefore  refer  to  a  few  cases  by  way  of  illustration.  The  language  of 
Turner,  L.  J.,  in  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650,  gives  the 
rule  of  the  text  in  both  of  its  branches:  "  I  think  that  if  the  words  of  a  will 
be  such  as  to  embrace  ditferent  subjects,  the  context  of  the  will  may  be  re- 
sorted to  for  the  purpose  of  ascertaining  to  which  of  these  subjects  the  words 
5Tere  intended  to  apply;  and  I  think  that  the  question  in  every  case  upon  the 
construction  of  a  will  must  be.  What  was  the  intention  of  the  testator?  and 
that  if  the  intention  can  be  collected  from  the  context,  it  is  the  duty  of  the 
court  to  give  effect  to  it,  as  much  as  if  it  was  in  terms  expressed,  and  no  less 
80  in  cases  of  election  than  in  other  cases.  The  authorities  on  this  point  mean 
no  more  than  to  point  out  forcibly  the  difficulty  there  is  in  raising  a  case  of 

•^election  where  the  testator  has  a  limited  interest  in  the  property  as  to  which 
the  election  is  to  be  raised;  and  no  doubt  there  is  more  difficulty  in  such  cases 
than  in  the  ordinary  case  of  the  disposition  of  an  estate  belonging  to  another 
person,  and  in  whicti  the  testator  had  no  interest,  inasmuch  as  every  testator 
imust  prima  facie  be  taken  to  have  intended  to  dispose  only  of  what  he  had 
the  power  to  dispose  of;  and,  as  in  order  to  raise  a  case  of  election,  it  must 
be  clear  that  there  was  an  intention  on  the  part  of  the  testator  to  dispose  of 
what  he  had  not  the  right  or  power  to  dispose  of."     In  Maxwell  v.  Maxwell, 

2  De  Gex,  M.  &  G.  705,  713,  a  testator  by  an  English  will  in  terms  gave  "all 
his  real  and  personal  estate  whatsoever  and  wheresoever,"  etc.  This  language 
was  not  sufficient  by  the  Scotch  law  to  embrace  lands  owned  by  the  testator 
in  Scotland,  which  therefore  descended  to  his  heir  at  law;  and  the  only  ques- 
tion was,  whether  by  this  general  gift  the  testator  intended  to  embrace  the 
Scotch  lands,  or  to  dispose  of  the  English  property  alone.  Knight  Bruce,  L.  J.j 
said  (p.  713)  :  "According  to  the  principles  or  rules  of  construction  which 
the  English  law  applies,  if  not  to  all  instruments,  at  least  to  testamentary 
instruments  liable  to  interpretation,  the  generality,  the  mere  universality, 
of  a  gift  of  property  is  not  sufficient  to  demonstrate  or  create  a  ground  of 
inference  that  the  giver  meant  it  to  extend  to  property  incapable  of  being 
given  by  the  particular  act.  If  he  had  specifically  mentioned  property  not 
capable  of  being  so  given,  the  case  is  not  the  same."     Cranworth,  L.  J.,  said 

fp.  715)  :     "I  take  the  general  rule  to  bo  that  which  was  referred  to  by  Sir 

John   Leach,  in   Wentworth  v.  Cox,   6  Madd.   363,  that  a  designation  of  the 

.lubject  intended  to  be  adected  by  an   instrument  in  general  words  imports 

(l>)  See  post,  §S  492-502. 


791  CONCERNING    ELECTION.  §    475 

ful  whether  the  property  belongs  to  himself  or  not,  and  that 
he  only  intends  to  bestow  it  if  it  is  his  own;  for  example, 
where  he  directs  a  different  disposition,  in  case  it  turns  out 
that  he  has  no  power  to  make  the  gift,  or  where  he,  in  terms, 
makes  the  disposition,  if  he  has  the  power  to  do  so,  or  so  far 

prima  facie  that  property  only  upon  which  the  instrument  is  capable  of 
operating."  In  Orrell  v.  Orrell,  L.  R.  6  Ch.  302,  305,  which  was  a  similar 
case,  the  testator  gave  "  all  the  rest  and  residue  of  my  real  estate  situate  in 
any  part  of  the  United  Kingdom  or  elsewhere."  The  court,  while  quoting 
and  adopting  the  rule  as  laid  down  in  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G. 
705,  713,  held  that  the  peculiar  language  of  the  testator,  "  in  any  part  of," 
showed  his  intention  to  dispose  of  his  Scotch  lands  as  well  as  those  in  Eng- 
land, and  therefore  the  rule  did  not  apply.  In  Johnson  v.  Telford,  I  Rusa. 
&  M.  248,  which  resembled  the  two  preceding  cases.  Sir  John  Leach  thus 
stated  the  rule:  "  In  the  case  of  Brqdie  v.  Barry,  2  Ves.  &  B.  127,  the  Scotch 
estate  was  mentioned  in  the  will,  and  especially  intended  by  the  testator  to 
pass  thereby.  In  this  will  no  notice  whatever  is  taken  of  the  Scotch  estate, 
and  the  question  is,  whether  it  is  clearly  to  be  collected  from  the  general 
words  used  that  the  testator  meant  to  pass  his  Scotch  estate.  Where  a  tes- 
tator uses  only  general  words,  it  is  to  be  intended  he  means  those  general 
words  to  be  applied  to  such  property  as  vnll  in  its  nature  pass  by  the  will" 
In  Honeywood  v.  Forster,  30  Beav.  14,  a  testator  owned  freeholds  in  fee,  and 
was  tenant  in  tail  of  the  copyholds.  They  were  intermixed;  part  of  the  copy- 
holds were  in  his  own  occupation,  and  part,  with  parts  of  the  freeholds,  in 
the  occupation  of  tenants  upon  leases  at  one  rent.  By  his  will  he  devised  "  all 
his  real  estates  "  to  the  defendants,  and  gave  all  the  lands  occupied  by  him  to 
his  wife  for  life,  and  confirmed  the  tenants  in  their  occupations  for  twenty- 
one  years,  and  also  gave  benefits  to  the  heir  in  tail  of  the  copyholds.  The 
question  for  decision  was,  whether  this  heir  in  tail  was  put  to  an  election 
between  the  copyholds  descending  to  him  as  heir  in  tail  and  the  benefits  given 
by  the  will.  Sir  John  Romilly,  M.  R.,  said:  "  If  a  testator  says,  '  I  give  all 
the  property  I  have  in  the  world  to  A  B,'  and  he  leaves  a  large  legacy  to  his 
heir  in  tail,  that  will  not  raise  a  case  of  election  against  such  heir,  because 
the  testator  only  gives  what  he  has.  It  occurred  to  me  at  first  that  such 
was  the  character  of  the  present  will;  but  on  the  facts  of  the  case  being 
brought  to  my  attention,  it  became  plain  that  such  was  not  the  case.  .  .  . 
[After  recapitulating  the  provisions  of  the  will  and  the  situation  of  the  prop- 
erty.] I  think  that  in  this  state  of  circumstances,  coupled  with  the  fact  of 
the  nature  and  holding  of  the  property,  there  is  an  intention  shown  on  the 
face  of  the  unll  to  dispose  of  these  copyholds  away  from  the  heir  in  tail."  The 
heir  was  therefore  held  bound  to  elect.  The  cases  of  Dummer  v.  Pitcher,  2 
Mylne  &  K.  262,  and  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35.  well  illustrate 
the  rule  of  the  text  in  both  of  its  branches.  In  Dummer  v.  Pitcher,  2  Mylne 
&  K.  262,  the  testator's  will  said:  "I  bequeath  the  rents  of  my  leasehold 
houses  and  the  interest  of  all  my  funded  property  or  estate."  The  testator 
had  in  fact  no  funded  property  at  the  date  of  his  will,  but  there  was  funded 
property  originally  belonging  to  his  wife,  and  standing  in  the  joint  names 
of  her  and  himself.  After  his  deaths  the  wife  claimed  this  funded  property 
by  right  of  survivorship,  and  as  she  took  benefits  under  the  will,  it  was  con- 


§    475  EQUITY   JUEISPBUDENCE.  792 

as  he  lawfully  can,  and  the  like.^  Since  the  necessity  of  an 
election  is  only  created  by  something  in  the  nature  of  a  gift 
or  disposition  of  property,  it  follows  that  an  erroneous  re- 
cital in  a  will,  and  misconception  of  the  testator  as  to  the 
effect  of  the  rights  of  others,  will  not  raise  a  case  of  election, 
though  the  testator,  in  consequence  of  his  mistake  as  to  those 
rights,  gives  more  to  one  person  than  to  another ;  the  former 
is  not  bound  to  compensate  the  latter.^  The  doctrine  of 
election  is  not  applicable  to  cases  where  the  testator,  errone- 
ously thinking  certain  property  is  his  own,  gives  it  to  a 
donee  to  whom  in  fact  it  belongs,  and  also  gives  him  other 
property  which  is  really  the  testator's  own;  for  in  such 
cases  the  testator  intends  that  the  devisee  shall  have  both^ 
though  he  is  mistaken  as  to  his  own  title  to  one.^    Nor  does 

tended  that  she  must  elect  between  these  benefits  and  her  own  funded  prop- 
erty, which,  it  was  claimed,  the  will  had  given  away.  Lord  Chancellor 
Brougham  held,  aflBrming  the  decision  of  the  vice-chancellor,  that,  although 
the  testator  had  no  funded  property  of  his  own  at  the  date  of  his  will,  his 
words  might  well  be  construed  as  intended  to  apply  to  any  funded  property 
which  he  might  have  at  his  death,  and  that  therefore  he  was  not  to  be  re- 
garded as  intending  to  dispose  of  the  funded  property  standing  in  the  joint 
names  of  himself  and  his  wife,  and  belonging  to  her,  and  consequently  that  no 
case  for  an  election  arose.  In  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35,  the 
will  said:  "I  bequeath  all  my  shares  in  the  Nottingham  Canal  Navigation.'* 
At  the  time  and  do\vn  to  his  death  he  had  no  such  shares  of  his  own,  but  had 
certain  shares  of  that  same  canal  company  standing  in  the  joint  names  of 
himself  and  his  wife,  and  really  belonging  to  her.  Under  the  like  circum- 
stances and  contention  as  in  the  last  case,  it  was  held  that  the  words  of  bo- 
quest  showed  an  intention  to  give  away  these  very  shares  belonging  to  his 
wife,  and  therefore  she  was  bound  to  elect.  By  comparing  these  two  cases,  the 
dividing  line,  though  narrow,  is  seen  to  be  really  substantial.  In  the  first, 
the  words  of  gift  were  most  general,  not  referring  to  or  describing  any  specific 
property.  In  the  second,  the  same  words,  although  general  with  respect  to 
amount,  do  apply  to  and  describe  certain  specific  property,  and  so  clearly 
identify  it  that  there  could  be  no  doubt  of  the  testator's  intention  to  bequeath 
it, — "  all  my  shares,"  etc.  See  also  Havens  v.  Sackett,  15  N.  Y.  365.  The 
American  cases  involving  and  illustrating  this  rule  have  generally  been  those 
where  a  testator  has,  in  general  terms,  given  land  in  which  liis  wife  held  a 
dower  riglit.    Many  of  them  will  be  found  cited  under  subsequent  paragraphs. 

1  Bor  V.  Bor,  3  Brown  Pari.  C,  Tomlins's  ed.,  167 ;  Church  v,  Kemble,  6 
Sim.  525. 

2Hox  V.  Barrett,  L.  R.  3  Eq.  244;  Dashwood  v.  Peyton,  18  Yes.  41;  Blake 
V.  Bunbury,  1  Ves.  515,  523;  Forrester  v.  Cotton,  Amb.  388,  1  Eden,  532,  535; 
and  see  Langslow  v.  Langslow,  21  Bcav.  552;  Clarke  v.  Guise,  2  Yes.  617,  618. 

8  Cull  V.  Showell,  Amb.  727. 


793  CONCEKNING    ELECTION.  §§    476,    477 

the  doctrine  apply  unless  the  donee,  who,  it  is  claimed^ 
ought  to  elect,  is  entitled  in  his  own  right  to  the  property 
given  to  another,  and  not  in  his  representative  capacity ;  al- 
though, in  effect,  he  may  be  beneficially  interested ;  as,  for 
example,  where  he  takes  as  his  wife's  administrator.* 

§  476.  First  Class  of  Cases. —  I  shall  now  describe  and  dis- 
cuss the  most  important  of  the  cases  which  have  arisen^ 
and  in  respect  of  which  it  has  been  settled  that  the  necessity 
for  an  election  does  or  does  not  exist.  By  a  line  of  separa- 
tion which  the  foregoing  paragraphs  show  not  to  be  merely 
arbitrary,  I  shall  arrange  these  cases  in  two  main  divisions, 
namely:  1.  Those  where  the  donor  assumes  to  give  prop- 
erty belonging  entirely  to  another,  and  in  which  he  himself 
has  no  interest;  2.  Those  where  the  donor  gives  property  in 
which  he  himself  has  a  partial  interest,  while  a  partial 
interest  therein  is  also  held  by  another. 

First  Class. —  Cases  in  which  the  donor  assumes  to  give 
specific  property  belonging  entirely  to  another,  where  he 
himself  has  no  interest  in  it,  and  no  power  of  disposition 
over  it. 

§  477.  Ordinary  Case :  Gift  of  Specific  Property. —  The  sim- 
plest case  is  that  in  which  the  donor,  by  language  of  descrip- 
tion sufficient  to  designate  the  subject-matter,  and  by  terms 
of  donation  sufficient  to  effect  a  transfer  if  they  operated 
upon  property  of  his  own,  bestows  upon  B  some  specific 
estate,  interest,  or  fund,  which  in  fact  belongs  entirely  to 
A,  and  by  the  same  instrument  confers  upon  A  some  benefit 
out  of  the  donor's  own  property.  Under  these  circum- 
stances a  case  for  an  election  always  arises.  The  whole 
effect  depends  upon  the  question  whether  there  is  such  a 
gift ;  and  if  so,  there  is  really  no  room  for  interpretation  or 
construction.    No  discussion  of  this  case  is  needed.^ 

4Grissell  v.  Swinhoe,  L.  K  7  Eq.  291;  and  see  Cooper  v.  Cooper,  L.  R.  6  Ch. 
16,  in  which  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  is  explained. 

1  Dillon  V.  Parker,  1  Swanst.  359,  376,  381,  394,  and  notes  by  Mr.  Swanston, 
with  the  cases  cited;  Gretton  v.  Haward,  1  Swanst.  409,  413,  420,  425,  433,  and 
notes  with  the  cases  cited;  Noys  v.  Mordaunt,  2  Vern.  581;  Streatfield  v. 
Streatfield,  Cas.  t.  Talb.  176,  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  503,  510,  541,  and 


§    478  EQUITY   JURISPRUDENCE.  794 

§  478.  Cases  of  Election  Arising  under  Appointments  in  Pur- 
suance of  Powers. —  As  cases  of  tliis  description  are  very 
rare  in  the  United  States,  a  very  brief  and  condensed  treat- 
ment of  tlie  subject  will  suffice.  Cases  for  an  election  may 
arise  under  appointments  made  in  pursuance  of  powers. 
In  the  case  of  a  void  appointment  by  will  to  a  stranger  to 
the  power,  and  a  devise  or  bequest  of  the  appointor's  own 
property  to  the  object  of  it,  who  takes  also  under  the  power 
as  in  default  of  appointment,  such  person  must  elect  between 
what  comes  to  him  under  the  power  from  the  default  of  a 
valid  appointment,  and  the  benefits  conferred  by  the  ap- 
pointor's will.^ '  In  order  to  raise  a  case  of  election,  where 
the  appointor  appoints  the  property  subject  to  the  power  to 
a  stranger,  he  must  give  some  property  of  his  own  to  the 
object  of  the  power  ;^  for  if  no  property  be  given  but  what 
is  subject  to  the  power,  there  is  nothing  out  of  which  com- 
pensation can  be  made.^  ^ 

cases  cited  in  notes  of  the  English  and  American  editors;  Blake  v.  Bunbury.  4 
Brown  Ch.  21;  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note;  Ardesoife  v. 
Bennett,  1  Dick.  463 ;  Whistler  v.  Webster,  2  Ves.  367 ;  Ward  v.  Baugh,  4  Yes. 
623;  Lady  Caven  v.  Pultfiney,  2  Ves.  544,  560;  Dashwood  v.  Peyton,  18  Ves.  27, 
49;  Welby  v.  Welby,  2  Ves.  &  B.  190;  Lord  Rancliffe  v.  Parkyns,  6  Dow,  149, 
179;  Ker  v.  Wauchope,  1  Bligh,  1,  25. a    And  see  cases  cited  in  previous  notes. 

1  Whistler  v.  Webster,  2  Ves.  367;  Tomkyns  v.  Blane,  28  Beav.  423;  England 
V.  Lavers,  L.  R.  3  Eq.  63;  Reid  v.  Reid,  25  Beav.  469. 

2  In  re  Fowler,  27  Beav.  362. 

8  Bristowe  v.  Warde,  2  Ves.  336.  In  Coutts  v.  Ackworth,  L.  R.  9  Eq.  519,  a 
lady,  on  her  marriage,  appointed  three  thousand  pounds  to  trustees,  the  inter- 

§  477,  (a)  See,  also,Moore  v.  Baker,4  Settlement  [1903],  1  Ch.  715.  So,  when 

Ind.  App.  115,  51  Am.  St.  Rep.  203,  30  a  testatrix  by  her  will,  purporting  to 

N.  E.  629.     In  Fitzhugh  v.  Hubbard,  exercise     a     power     of     appointment 

41    Ark.   64,  a  testator  gave  to  his  which  she  erroneously  supposed  her- 

brother    an    indebtedness    due    from  self    to    possess,    appointed    property 

him,  and  the  remainder  of  his  estate  to  which  one  J.  was  entitled  to  third 

to  his  sister.     This  indebtedness  had  persons,    and    by    a    codicil    gave    J. 

in  fact  been  transferred  by  the  testa-  other   property,   over   which   she   had 

tor  before  the  execution  of  the  will  full  testamentary  power,  J.  is  put  to 

to  the  sister.     Held,  that  the  sister  an  election  whether  to  take  under  or 

was  bound  to  elect  whether   to  con-  against  the  will;   In  re  Brooksbank, 

firm  the  will,  or  renounce  and  hold  34  Ch.  Div.   160. 
the  debt.  (b)  See,  to    the   same  effect,   Gra- 

8  478,  (a)  Sec,  also,  White  v.  White,  hnm    v.    Whitridge     (Md.),    67    Atl. 

22    Ch.    Div.    555;    In    re    Tancred'e  609. 


795  CONCERNING   ELECTION.  §    479 

§  479.  An  object  of  two  powers  improperly  excluded  by 
an  appointment  under  one  is  not  debarred  in  consequence 
from  claims  upon  the  other,  and  no  case  of  election  arises. 
Thus  if  there  are  two  powers,  one  exclusive  and  the  other 
not,  and  there  are  several  objects  of  both,  an  appointment 
of  the  whole  fund  under  the  exclusive  power  to  A,  who  is  an 
object  of  both  powers,  and  an  appointment  of  the  whole 
fund  under  the  non-exclusive  power  to  other  objects,  ex- 
cluding A,  will  not  prevent  A's  sharing  in  the  property  dis- 
posable of  by  the  second  power,  which  had  been  defectively 
appointed  by  reason  of  his  improper  exclusion,  and  he  is 
not  bound  to  elect.^  And  where  there  are  two  powers,  both 
exclusive,  children  and  grandchildren  being  the  objects  of 
one,  and  children  only  of  the  other,  and  an  appointment  is 
made  under  the  former  to  children  only,  and  under  the  latter 
to  children  and  a  grandchild  (who  is  not  therefore  an 
object),  the  children  are  not  compellable  to  elect,  in  order 
to  give  effect  to  the  void  appointment  to  the  grandchild.* 
A  case  of  election  will  not  arise  if  a  testator  appointor 
merely  requests  or  directs  the  appointees,  who  are  also 
legatees  of  other  property,  to  give  the  appointed  property 
to  strangers  to  the  power.^    Nor  will  a  case  of  election 

est  to  be  paid  to  her  husband  for  life,  and  after  his  decease  the  capital  was  to 
go  over.  The  deed  contained  a  power  to  revoke  the  trusts  subsequent  to  the 
life  estate  of  the  husband.  By  her  will,  after  marriage,  she  purported  to  re- 
voke all  the  trusts  of  the  deed,  and  gave  one  thousand  pounds  to  her  husband, 
and  two  thousand  pounds  to  another  person.  It  was  held  that  the  testatrix 
having  revoked  all  the  trusts  of  the  deed,  while  the  power  of  revocation  only 
extended  to  the  remainder  after  her  husband's  life  estate,  she  had  thus  at- 
tempted to  deal  with  his  interest,  and  the  husband  was  therefore  obliged  to 
elect  between  the  one  thousand  pounds  given  him  by  the  will  and  the  interest 
on  the  three  thousand  pounds  for  his  life  given  him  by  the  original  deed  of  ap- 
pointment. 

1  In  re  Aplin,  13  Week.  Rep.  1062. 

2  In  re  Fowler,  27  Beav.  362. 

S  Blackett  v.  Lamb,  14  Beav.  482.  The  reason  of  this  rule  was  thus  stated 
by  Sir  John  Romilly,  M.  R. :  "  The  superadded  words  used  by  the  testator  here 
neither  are  nor  profess  to  be  any  appointment  over  the  fund  itself,  but  they 
purport  to  raise  an  obligation  on  the  conscience  of  the  person  taking  the  bene- 
fit of  the  gift,  to  transfer  that  benefit,  after  his  decease,  to  his  children.  I  am 
of  opinion  that  if  the  words  had  been  used  by  the  testator  with  reference  to  s 


§    480  EQUITY    JURISPRUDENCE.  796 

arise  where  the  appointment  is  absolute,  with  a  subsequent 
superadded  direction  or  condition  in  favor  of  strangers  * 
But  a  case  of  election  does  arise  where  the  testator  directs 
that  the  legacies  which  he  also  gives  to  the  appointees  shall 
be  forfeited  if  the  direction  as  to  the  appointed  fund  is  not 
complied  with.^ 

§  480.  No  case  of  election  arises  under  a  void  appoint- 
ment, where  the  appointor  declares  that  he  makes  it  only 
in  case  he  has  the  power  to  do  so.^  An  appointee  under 
two  appointments,  one  of  which  becomes  inoperative,  is 
not  bound  to  elect  between  the  well-appointed  fund  and 
an  interest  to  which  he  becomes  entitled,  as  next  of  kin  to 
the  appointor,  in  the  ill-appointed  fund  which  devolves  on 
such  next  of  kin  in  consequence  of  the  appointment  of  it 
proving  to  be  inoperative.^  * 

fund  which  was  wholly  within  his  own  control,  to  deal  tmth  as  he  might  think 
fit,  these  words  would  have  created  a  trust,  and  that  his  children,  taking  the 
gifts  under  the  will  of  the  testator,  would  have  taken  them  charged  with  the- 
duty  of  disposing  of  them  according  to  that  will." 

4  Woolridge  v.  Woolridge,  1  Johns.  63;  Carver  v.  Bowles,  2  Euss,  &  M.  301; 
Churchill  v.  Churchill,  L.  K.  5  Eq.  44;  Wollaston  v.  King,  L.  R.  8  Eq.  165;  but 
6ee  Moriarty  v.  Martin,  3  Ir.  Ch.  26.  In  Woolridge  v.  Woolridge,  1  Johns.  63, 
the  rule  was  laid  down,  "  that  where  there  was  an  absolute  appointment  by 
will  in  favor  of  a  proper  object  of  the  power,  and  that  appointment  is  followed 
by  attempts  to  modify  the  interest  so  appointed  in  a  manner  which  the  law 
will  not  allow,  the  court  reads  the  will  as  if  all  the  passages  in  which  such  at- 
tempts are  made  were  swept  out  of  it  for  all  intents  and  purposes."  See  Wal- 
linger  v.  Wallinger,  L.  R.  9  Eq.  301. 

6  King  v.  King,  15  Ir.  Ch.  479 ;  Boughton  v.  Bough  ton,  2  Ves.  Sr.  12. 

1  Church  V.  Kemble,  5  Sim.  525. 

2Blaiklock  v.  Grindle,  L.  R.  7  Eq.  215;  Rich  v.  Cockell,  9  Ves.  369. 

(a)   In  Albert   v.   Albert,   68   Md.  to  elect  whether  to  take,  under  the 

352,   12  Atl.   11,   A.   had  a  power  of  will   of   J.,    their    proportion    of    the 

appointment   over   the   estate   of   his  property  of  the  J.  estate,  and  rcliu- 

father,  J.,  conferred  upon  him  by  J.'s  quish  all  claim  to  participate  in  the 

will.      In   his   own   will,   A.   mingled  estate  of  A.,  or  to  abide  by  the  will 

his  own  and  his  father's  estate,  and  of   A.    in    its   entirety.      They    could 

created   certain    trusts    which,   as   to  not  claim  both  against  and  under  the 

the  property  comprised  in  the  J.  es-  will.     In   In  re  Bradshaw   [1902],   1 

tate,    were   void   on    account   of   per-  Ch.  430,  W.  B.  by  his  will  gave  prop- 

petuities.       Held,    that    tliose    bene-  erty  upon  trust   for  the  children   of 

fjciaries  as  to  whose  shares  the  trusts  A.    B.   as   A.    B.    should   by   will   ap- 

were  in  part  void  would  be  required  point,  and  in  default  of  appointment 


797  CONCERNING   ELECTION.  §    481 

§  481.  Cases  of  Election  where  a  Testator  has  Attempted  to 
Dispose  of  his  Property  by  a  Will  Which  is  Ineffectual  for  That 
Purpose —  The  cases  falling  under  this  head  would  arise 
where  a  testator  had  devised  lands  to  a  stranger,  and  had 
given  a  legacy  to  his  own  heir,  but  by  reason  either  of  the 
testator's  personal  incapacity,  or  of  the  imperfect  execu- 
tion of  the  will,  or  of  some  special  legal  rule,  the  devise  to 
the  stranger  is  void,  so  that  the  land  included  in  it  would 
descend,  while  the  gift  to  the  heir  is  valid.  The  question 
would  then  be  presented,  whether  the  heir  may  take  both 
the  land  descending  to  him  on  account  of  the  devise  being 
void  and  the  legacy,  or  whether  he  must  elect  between  the 
two,  on  the  ground  that  if  he  accepts  the  benefits  given  him, 
he  must  confirm  the  will  entirely.  The  various  circum- 
stances which  have  given  rise  to  cases  of  this  sort  are  the 
following:  The  testator's  personal  incapacity,  through 
infancy  or  coverture ;  the  imperfect  execution  of  the  will,  as 
one  of  lands ;  a  will  leaving  some  lands  entirely  undisposed 
of  to  descend  to  the  heir,  while  it  gives  other  benefits  to  the 
lieir ;  a  will  executed  in  one  country  or  state,  and  effectual 
to  carry  all  the  testator's  property  therein,  but  which  does 
not,  on  account  of  its  not  using  api>ropriate  language,  carry 
liis  property  situated  in  another  country  or  state ;  and  a  will 
i^^hich  does  not  carry  after-acquired  lands.  These  cases 
ivill  be  separately  examined  in  the  order  thus  given.  It  is 
important  to  be  remembered,  however,  in  this  connection, 
that  modern  legislation  has  removed  most  of  the  occasions 
upon  which  these  cases  can  arise,  and  such  questions  will 
hereafter  be  infrequent.  Thus  in  very  many  of  the  states, 
statutes  have  conferred  upon  infants  and  married  women 

for  the  children  equally.  A.  B.  cove-  own  in  favor  of  the  son.  The  cove- 
nanted with  the  trustees  of  his  mar-  nant  was  not  satisfied  by  the  terms 
riage  settlement  to  exercise  the  pow-  of  the  will.  Held,  that  A.  B.'s  son 
ers  in  a  particular  way.  A.  B.  by  must  elect  between  the  interest  be- 
his  will  made  an  appointment  to  his  queathed  to  him  in  the  property  of 
son  for  life  with  an  appointment  over  A.  B,  and  his  interest  in  default  of 
which  was  void  as  transgressing  the  appointment  under  the  will  of  A.  B. 
rule  against  perpetuities,  and  he  also  Held  also,  that  the  covenant  was  void. 
■vaade  a   bequest  of   property   of   his 


§    482  EQUITY    JURISPRUDENCE.  798 

the  same  capacity  to  make  wills  of  real  and  of  personal 
estate,  and  have  prescribed  exactly  the  same  mode  of  execut- 
ing wills  of  real  and  of  personal  property,  and  have 
abolished  the  common-law  rule  which  excluded  after-ac- 
quired lands  from  the  operation  of  a  devise.  This  legislation 
has  made  it  impossible  for  most  of  the  cases  above  men- 
tioned to  arise  in  the  states  where  it  exists. 

§  482.  Infancy  and  Coverture  of  a  Testator. —  The  rule  ap- 
plicable under  these  circumstances  depends  upon  the  doc- 
trine that,  in  order  to  create  the  necessity  of  election,  there 
must  be  a  disposition  made  or  intended  to  be  made  by  the 
donor  by  means  of  a  valid  instrument.  As  a  universal  prop- 
osition, an  heir  cannot  be  put  to  an  election  by  the  will  of 
his  ancestor,  unless  there  is  a  disposition  by  a  valid  will; 
and  it  does  not  arise  if  the  testator  is  incapacitated  by  in- 
fancy or  coverture,  or  if  he  attempts  to  dispose  of  property 
by  a  will  not  duly  executed.^  No  case  of  election  will  be 
raised  where  there  is  a  want  of  capacity  to  devise  real  estate 
by  reason  of  infancy.  Prior  to  modern  statutes,  therefore, 
where  an  infant,  whose  will  was  valid  as  to  personalty,  but 
invalid  as  to  the  realty,  devised  his  real  estate  to  a  stranger, 
and  gave  a  legacy  to  his  heir  at  law,  the  heir  at  law  was  not 
obliged  to  elect  between  this  legacy  and  the  lands  which 
descended  to  him  through  the  invalidity  of  the  devise;  he 
could  take  both.^  On  the  same  ground,  a  case  of  election 
did  not  arise  from  the  incapacity  of  the  testator  by  reason 
of  coverture.  Under  the  old  law,  the  only  will  which  it  was 
possible  for  a  married  woman  to  make  was  one  executed  by 
way  of  appointment  under  a  power  bestowed  upon  her. 
Where,  therefore,  a  married  woman,  acting  under  a  power, 
made  a  valid  appointment  by  will  to  her  husband,  and  also 

iThellusson  v.  Woodford,  13  Yes.  223;  Gardiner  v.  Fell,  1  Jacob  &  W.  22. 

Zllearle  v.  Greenbank,  3  Atk.  095,  715,  1  Yes.  Sr,  298;  Brodie  v.  Barry,  2 
Yes.  &  B.  127;  Slieddon  v.  Goodrich,  8  Yes.  481;  Snelgrove  v.  Snelgrove,  4  De- 
Baus.  Eq.  274;  Mclchor  v.  Burger,  1  Dev.  &  B.  Eq.  G34;  Kearney  v.  Macomb,  16 
N.  J.  Eq.  1H9;  Tongue  v.  ^'uLvvell,  17  Md.  212,  229,  79  Am.  Dec.  049;  Jones  v. 
Jonea,  8  Gill,  197. 


799  CONCERNING    ELECTION.  §    483^ 

in  the  same  will  bequeathed  to  a  stranger  certain  personal 
property,  over  which  the  power  did  not  extend,  the  husband 
was  not  put  to  an  election,  but  could  retain  the  fund  ap- 
pointed to  him,  and  also  claim  the  personal  property  which 
his  wife  had  attempted  to  bequeath,  and  to  which  he  was 
entitled  by  virtue  of  his  right  of  succession  as  husband.' 
Neither  of  these  cases  could  readily  occur  at  present,  since 
an  infant  has  the  same  power  by  statute  in  most  states  to 
make  a  will  of  real  and  of  personal  estate,  and  a  married 
woman  is  generally  empowered  to  make  a  will  of  all  her  own 
property,  real  or  personal. 

§  483.  Will  Valid  as  to  Personal  Estate,  but  Invalid  as  to 
Lands. —  The  cases  now  to  be  considered  are  those  in  which 
the  testator  had  full  capacity  to  dispose  of  all  his  property, 
but  by  reason  of  his  not  complying  with  some  rule  ^f  the 
law  as  to  mode  of  execution  or  form  of  description,  the  will 
proved  to  be  inoperative  with  respect  to  certain  kinds  of  his 
property,  which  property  therefore  descended  to  his  heir 
or  devolved  upon  his  successors,  as  in  the  absence  of  any 
will.  Prior  to  statutes  comparatively  modern,  a  will  of  free- 
hold estates  in  land  required  certain  formalities  in  its  exe- 
cution, which  were  not  necessary  to  the  validity  of  a  will  of 
personal  property.  Under  that  condition  of  the  law,  it  was 
a  well-settled  rule  that  where  a  testator,  by  a  will  not  exe- 
cuted with  the  formalities  requisite  to  pass  freehold  estates 
in  land,  purported  to  devise  such  freehold  estates  away  from 
his  heir  to  a  stranger,  and  by  the  same  will  gave  a  legacy 
to  his  heir,  the  heir  was  not  obliged  to  elect,  but  could  take 
both  the  legacy  and  the  lands  which  descended  to  him,  not- 
withstanding the  attempted  devise.  In  other  words,  the  law 
would  not,  in  the  absence  of  any  express  condition  inserted 
in  the  will  by  the  testator  himself,  impose  any  implied  con- 
dition upon  the  heir,  and  thus  compel  him  to  carry  out  the 
supposed  intent  of  the  testator  by  conforming  to  all  the 

3  Rich  V.  Cockell,  9  Ves.  369;  Blaiklock  v.  Grindle,  L.  R.  7  Eq.  215;  and  see 
the  American  cases  cited  in  the  last  preceding  note. 


§    484  EQUITY   JURISPRUDENCE.  800 

dispositions  of  the  will.^  This  rule,  however,  does  not 
apply  where  the  legacy  is  given  to  the  heir  upon  an  express 
condition  that  if  he  disputes  or  does  not  comply  with  the 
whole  of  the  will,  he  shall  forfeit  all  benefit  under  it.  In 
that  case  the  condition  is  binding  upon  the  heir,  and  if  he  ac- 
cepts the  legacy,  he  cannot  claim  the  descended  lands.  This 
result,  however,  is  not  properly  referable  to  the  doctrine  of 
election;  it  is  merely  a  case  of  a  gift  with  a  condition  an- 
nexed to  it,  so  that  unless  the  condition  is  fulfilled  the  gift 
is  wholly  inoperative.^"  The  principal  rule  stated  above, 
at  the  commencement  of  this  paragraph,  has  become  practi- 
cally obsolete  in  the  United  States,  as  well  as  in  England,' 
since  by  statutes  the  same  modes  of  execution  have  been  pre- 
scribed for  wills  of  real  and  of  personal  property. 

§  484.  Will  Invalid  in  Another  Country  or  State. —  There 
is  a  second  case  which  may  and  does  arise  in  this  country 
and  in  England,  having  been  affected  by  no  statute.  A 
testator  has  property  situated  in  two  states  or  countries; 
he  makes  a  will,  the  language  of  which,  either  by  general 
or  particular  description,  applies  to  both  classes  of  prop- 
erty, by  which  he  devises  his  lands  away  from  his  heir  to 

iSheddon  v.  Goodrich,  8  Yes.  481;  Gardiner  v.  Fell,  1  Jacob  &  W.  22;  Thel- 
lusson  V.  Woodford,  13  Ves.  220,  221;  Wilson  v.  Wilson,  1  De  Gex  &  S.  152; 
Kearney  v.  Macomb,  16  N.  J.  Eq.  189;  Tongue  v.  Nutwell,  17  Md.  212,  219;  79 
Am.  Dec.  649;  Jones  v.  Jones,  8  Gill,  197;  Melehor  v.  Burger,  1  Dev.  &  B.  Eq, 
634;  McElfresh  v.  Schley,  1  Gill,  181.  While  acknowledging  this  rule  to  be 
firmly  established,  able  judges  have  expressed  a  strong  opinion  against  its 
soundness  in  principle,  viz.:  Lord  Eldon,  in  Sheddon  v.  Goodrich,  8  Ves.  481, 
496;  Sir  William  Grant,  in  Brodie  v.  Barry,  2  Ves.  &  B.  127;  and  Lord  Ken- 
yon.,  in  Gary  v.  Askew,  1  Cox,  241. 

2  It  seems  also  that  the  condition  may  be  shown  from  the  whole  tenor  and 
form  of  the  disposition,  provided  it  shows  a  clear  intent  of  the  testator  that 
the  legacy  depends  upon  the  carrying  out  of  his  other  attempted  gifts: 
Boughton  V.  Boughton,  2  Ves.  Sr.  12;  Sheddon  v.  Goodrich,  8  Ves.  481,  490, 
per  Lord  Eldon;  Melehor  v.  Burgei',  1  Dev.  &  B.  Eq.  634;  Snelgrove  v.  Snel- 
grove,  4  Dcsaus.  Eq.  274,  300;  Jones  v.  Jones,  8  Gill,  197;  Kearney  v.  Macomb, 
16  N.  J.  Eq.  189;  McElfresh  v.  Schley,  1  Gill,  181;  Nutt  v.  Nutt,  1  Freem. 
Ch.   128. 

3  Lord  Langdale's  Act,  concerning  wills,  1  Vict.,  c.  26. 

(a)  The  text  is  cited  to  this  elTcct  563,  64  Am.  St.  Rep.  745,  27  S.  E. 
in  Fifjeld  v.  Van  Wyck,  94  Va.  557,       446. 


801  CONCERNING    ELECTION.  §    484 

A  stranger,  and  at  the  same  time  gives  a  legacy  or  other 
benefit  to  his  heir;  the  will  is  valid  and  operative  by  the 
law  of  the  state  or  country  in  which  it  is  made,  so  that  all 
the  testator's  property  situated  therein  is  effectively  dis- 
posed of;  but,  either  from  the  neglect  of  proper  modes  of 
execution,  or  of  the  requisite  form  of  description  or  dis- 
position, the  will  is  not  valid  and  operative  by  the  law  of 
the  other  state  or  country  to  carry  the  lands  of  the  testator 
situated  therein;  the  attempted  devise  of  the  lands  situated 
in  that  other  country  or  state  is  therefore  void,  and  the 
lands  themselves  descend  to  the  heir  at  law.  The  question 
presented  upon  these  facts  is,  whether  the  heir  is  bound  to 
elect  between  the  gift  contained  in  the  will  and  the  descended 
lands,  or  whether  he  may  retain  both.  It  will  be  seen  from 
the  numerous  decisions  —  English  and  American  —  that  the 
answer  to  this  question  is  made  to  depend  upon  a  second, 
namely,  whether  the  testator,  by  the  language  of  descrip- 
tion and  disposition  being  sufficiently  specific  as  applied  to 
the  foreign  lands,  has  shown  a  clear  intent  to  include  those 
lands  in  his  devise  to  the  stranger ;  or,  from  his  using  more 
general  language  in  describing  the  subject-ma.tter  dealt 
with,  the  testator  has  shown  an  intent,  according  to  the 
settled  rules  of  interpretation,  to  confine  the  operation  of 
his  will  to  the  property  situated  in  the  first  state  or  country 
where  the  will  was  made,  and  which  property  he  had  the 
poiuer  to  dispose  of  hij  means  of  that  ivill.  This  is  one 
of  the  cases  to  which  the  general  rule  of  interpretation  laid 
down  in  section  473  is  constantly  applied  by  the  courts.  The 
cases  in  England  have  generally  arisen  upon  wills  made  in 
England,  and  valid  with  respect  to  the  testator's  property 
situated  there,  but  invalid  according  to  the  peculiar  law  of 
Scotland,  so  that  they  were  inoperative  to  carry  the  tes- 
tator's heritable  property,  or  landed  estates,  lying  in  that 
country.  The  English  courts  have  settled  the  two  following 
conclusions:  If  the  language  by  which  the  testator  de- 
scribes and  disposes  of  his  property  is  general  in  its  terms, 
and  makes  no  specific  reference  to  his  Scotch  heritable 
Vol.  1  —  51 


§    484  EQUITY   JURISPRUDENCE.  802 

property,  and  contains  no  words  or  phrases  which,  by  a 
reasonable  interpretation,  necessarily  refer  to  such  prop- 
erty, then  the  general  rule  of  construction  governs  the  case, 
that  the  testator  must  be  assumed  to  have  intended  to  con- 
fine the  dispositions  to  the  property  which  he  had  the  power 
to  dispose  of  hy  that  will, —  namely,  the  English  property. 
The  Scotch  heritable  property  is  not  disposed  of,  and  was 
not  intended  to  be  disposed  of,  and  the  heir  is  not  put  to  an 
election.  In  short,  the  case  falls  under  the  familiar  rule 
stated  in  the  last  paragraph.^  If,  on  the  other  hand,  the 
testator  makes  an  express  reference  to  his  Scotch  property, 
or  uses  such  specific  language  of  description,  that,  upon  a 
reasonable  interpretation,  he  must  have  intended  such  a 
reference,  and  a  clear  intention  is  thereby  shown  to  dispose 
of  the  Scotch  as  well  as  the  English  estate,  then,  although 
the  disposition  is  void  with  respect  to  the  Scotch  heritable 
property,  the  heir  at  law  is  compelled  to  elect  between  this 
property  thus  descending  to  him,  and  the  benefits  con- 
ferred upon  him  by  the  will.^    Similar  cases  have  arisen 

1  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705;  16  Beav,  106;  Johnson  v.  Tel- 
ford, 1  Russ.  &  M.  244;  Allen  v.  Anderson,  5  Hare,  163;  Maxwell  v.  Hyslop, 
L.  R.  4  Eq.  407 ;  Lamb  v.  Lamb,  5  Week.  Rep.  720.  In  Maxwell  v.  Maxwell,  2 
De  Gex,  M.  &  G.  705,  the  language  of  description  and  gift  was,  "  all  my  real 
and  personal  estate,  whatsoever  and  wheresoever."  See  extract  from  opinion, 
ante,  §  474,  note.  In  Johnson  v.  Telford,  1  Russ.  &  M.  244,  the  testator  "  gave, 
devised,  and  bequeathed  all  and  every  his  real  and  personal  estate  whatso- 
ever and  wheresoever,  which  he  was  or  should  be  seised  or  possessed  of  or 
entitled  to."  In  Allen  v.  Anderson,  5  Hare,  163,  the  testator  devised  "  all 
the  rest  and  residue  of  his  real,  personal,  and  mixed  estates,  whatsoever  and 
wheresoever,"  etc.  Held,  this  did  not  apply  to  a  Scotch  "  heritable  bond," 
which,  by  Scotch  law,  descended  to  the  heir  at  law,  and  the  heir  was  not 
bound  to  elect  between  the  bond  and  the  benefits  under  the  will.  In  Max- 
well v.  Hyslop,  L.  R.  4  Eq.  407,  the  testator  gave  "  all  the  residue  of  his  real 
and  personal  estate,"  and  this  was  held  not  to  apply  to  a  Scotch  estate  which 
descended  to  the  heir. 

2Brodie  v.  Barry,  2  Vcs.  &  B.  127;  Orrell  v.  Orrell,  L.  R.  6  Ch.  302;  Dewar 
V.  Maitland,  L.  R.  2  Eq.  834;  McCall  v.  McCall,  Dru.  283,  per  Lord  Chancellor 
Sugden.  In  Brodie  v.  Barry,  2  Yes.  &  B.  127,  the  language  of  the  devise  was, 
"  all  my  estate,  freeliold,  leasehold,  copyhold,  and  other  estates  whatever,  and 
wheresoever  situated,  in  England,  Scotland,  and  elsewhere,"  and  Sir  William 
Grant  held  that  the  intent  was  unmistakable  to  dispose  of  the  Scotch  estates 
au  well  as  the  English,  and  thciofore  it  waa  a  case  for  an  election.     In  Orrell 


803  CONCEENING   ELECTION.  §    484 

in  this  country  upon  wills  executed  in  one  state^  and  valid 
for  all  purposes  by  the  law  thereof,  but  not  valid  as  effective 
devises  of  land  by  the  law  of  another  state  in  which  was 
situate  real  property  owned  by  the  testator.  The  same 
twofold  rule  has  been  adopted  and  enforced  by  the  Ameri- 
can courts;  and  it  is  plain  that  such  cases  may  con- 
stantly arise  from  the  varying  legislation  of  different 
commonwealths,^ 

V.  Orrell,  L.  R.  6  Ch.  302,  tlie  language  was,  "  all  the  residue  of  my  real  estatej- 
tituate  in  any  part  of  the  United  Kingdom  or  elsewhere."  The  testator  left  es- 
tates in  England  and  Scotland,  but  none  in  Ireland  or  Wales.  The  court  of  ap- 
peal held  that  the  intention  to  dispose  of  the  Scotch  property  was  sufficiently- 
clear  to  require  an  election.  This  case  unquestionably  lies  very  near  if  not  ow 
the  line  which  separates  the  two  classes.  See  ante,  §  474,  note,  where  it  i» 
given  more  at  large.  In  Dewar  v.  Maitland,  L.  R.  2  Eq.  834,  the  will,  in  ex- 
press terms,  devised  estates  in  England  and  in  the  colony  of  St.  Kitts,  but  be- 
ing attested  by  only  two  Avitnesses,  it  was  not  effectual  to  pass  the  land  in  St 
Kitts  by  the  colonial  law.  The  rule  was  applied  requiring  the  heir  to  elect  be- 
tween the  lands  thus  descending  to  him,  and  the  gifts  made  to  him  by  the  will. 
3  Jones  V.  Jones,  8  Gill,  197;  Kearney  v.  Macomb,  16  N.  J.  Eq.  189;  Van 
Dyke's  Appeal,  GO  Pa.  St.  481,  489.  In  Jones  v.  Jones,  8  Gill,  197,  the  will  was 
made  in  Pennsylvania,  and  was  valid  there ;  but  was  not  valid  as  a  will  of  land 
in  Maryland,  because  it  was  not  executed  in  the  presence  of  three  witnesses. 
The  court  held  that  the  heir  was  not  bound  to  elect,  but  could  claim  the  Mary- 
land land  inherited  by  him,  and  retain  the  legacy  given  by  the  will.  In  Van 
Dyke's  Appeal,  60  Pa.  St.  481,  489,  the  opinion  of  Mr.  Justice  Sharswood  is- 
such  an  able  and  exhaustive  discussion  of  the  doctrine  as  applied  under  these 
and  analogous  circumstances  that  I  shall  quote  from  it  at  some  length.  The- 
testator  gave  legacies  to  his  daughters  which  exhausted  nearly  all  of  his  prop- 
erty in  Pennsylvania,  and  gave  his  real  estate  in  New  Jersey  to  his  sons.  The 
will  was  valid  in  Pennsylvania,  but  not  executed  so  as  to  be  an  efleetive  will 
of  lands  in  New  Jersey.  The  daughters,  therefore,  imless  compelled  to  elect, 
would  receive  all  the  Pennsylvania  property  as  legatees,  and  their  proportion- 
ate shares  of  the  New  Jersey  estate  as  heirs.  The  sons  brought  a  suit  in  equity 
to  compel  an  election,  and  a  conveyance  oi  the  estate  in  conformity  with  the 
will.  Sharswood,  J.,  after  holding  that  the  case  was  plainly  one  of  equitable 
cognizance,  falling  within  the  equitable  jurisdiction  over  trusts,  said:  "It 
may  certainly  be  considered  as  settled  in  England  that  if  a  will  purporting  to 
devise  real  estate,  but  ineffectually,  because  not  attested  according  to  the  stat- 
ute of  frauds,  gives  a  legacy  to  the  heir  at  law,  he  cannot  be  put  to  his  elec- 
tion :  Hearle  v.  Greenbank,  3  Atk.  695 ;  Thellusson  v.  Woodford,  13  Ves.  209  ; 
Buckeridge  v.  Ingram,  2  Ves.  652;  Sheddon  v.  Goodrich,  8  Ves.  482.  These 
cases  have  been  recognized  and  followed  in  this  country:  Melchor  v.  Burger, 
1  Dev.  &  B.  Eq.  634;  McElfresh  v.  Schley,  2  Gill,  181;  Jones  v.  Jones,  8  Gill, 
197;  Kearney  v.  Macomb,  16  N.  J.  Eq.  189.  Yet  it  is  equally  well  established 
that  if  the  testator  annexed  an  express  condition  to  the  bequest  of  the  persott 


I    485  EQUITY   JURISPRUDENCE.  804 

§  485.  Will  Devising  After-acquired  Lands. —  Still  another 
case  frequently  arose  under  the  former  condition  of  the  law, 
but  which  has  become  obsolete  from  the  effect  of  modern 
legislation  upon  the  construction  and  operation  of  wills, 
namely,   that   of   after-acquired   lands   purporting   to   be 

alty,  the  duty  of  election  will  be  enforced:  Boughton  v.  Boughton,  2  Ves.  Sr. 
12;  Whistler  v.  Webster,  2  Ves.  367;  Ker  v.  Wauchop,  1  Bligh,  1;  McElfresh  v. 
Schley,  2  Gill,  181.  That  this  distinction  rests  upon  no  sufficient  reason  has 
been  admitted  by  almost  every  judge  before  whom  the  question  has  arisen. 
Why  an  express  condition  should  prevail,  and  one,  however  clearly  implied, 
should  not,  has  never  been  and  cannot  be  satisfactorily  explained.  It  is  said 
that  a  disposition  absolutely  void  is  no  disposition  at  all,  and  being  incapable 
of  effect  as  such,  it  cannot  be  read  to  ascertain  the  intent  of  the  testator.  But 
an  express  condition  annexed  to  the  bequest  of  the  personalty  does  not  render 
the  disposition  of  the  realty  valid;  it  would  be  a  repeal  of  the  statute  of  frauds 
so  to  hold.  How,  then,  can  it  operate  any  more  than  an  implied  condition  to 
open  the  eyes  of  the  court,  so  as  to  enable  them  to  read  those  parts  of  the  will 
which  relate  to  the  realty?  and  without  a  knowledge  of  what  they  are,  how  can 
the  condition  be  enforced?"  He  then  quotes  the  language  of  several  eminent 
judges,  in  which  they  express  a  strong  dissent  from  the  soundness  of  this  dis- 
tinction, in  accordance  with  his  own  views,  although  admitting  that  it  had  be- 
come settled,  viz.,  of  Lord  Kenyon,  M.  R.,  in  Gary  v.  Askew,  1  Cox,  241 ;  and  of 
Sir  William  Grant,  in  Brodie  v.  Barry,  2  Ves.  &  B.  127;  and  of  Lord  Eldon,  in 
Ker  V.  Wauchop,  1  Bligh,  1,  and  Sheddon  v.  Goodrich,  8  Ves.  482;  and  then 
proceeds:  "Mr.  Justice  Kennedy  has  expressed  the  same  opinion:  'When  a 
condition  is  necessarily  implied  by  a  construction  in  regard  to  which  there  can 
be  but  one  opinion,  there  can  be  no  good  reason  why  the  result  or  decision  of 
the  court  should  not  be  the  same  as  in  the  case  of  an  express  condition,  and  the 
donee  bound  to  make  an  election  in  one  case  as  well  as  in  the  other':  Phila- 
delphia V.  Davis,  1  Whart.  510.  There  is  another  class  of  cases  in  England 
wholly  irreconcilable  with  this  shadoNvy  distinction ;  for  the  heir  at  law  of  a 
copyhold  was  formerly  put  to  his  election,  though  there  had  been  no  surrender 
to  the  use  of  the  will.  This  was  previous  to  55  Geo.  III.,  c.  192;  1  Lead. 
Cas.  Eq.  239,  note;  yet,  as  Sir  William  Grant  has  remarked,  'a  will,  however 
executed,  was  as  inoperative  for  the  conveyance  of  freehold  estates  ':  Brodie 
V.  Barry,  2  Ves.  &  B.  130.  The  precise  point  can  never  arise  in  this  state,  for, 
happily,  our  statute  of  wills  wisely  provides  that  the  forms  and  solemnities  of 
execution  and  proof  shall  be  the  same  in  all  wills,  whether  of  realty  or  person- 
alty. The  case  before  us  is  of  a  will  duly  executed  according  to  the  laws  of 
Pennsylvania,  devising  lands  in  New  Jersey,  vvlicre,  however,  it  is  invalid  as  to 
the  realty,  by  not  having  three  subscribing  witnesses,  A  court  of  New  Jersey 
might  hold  themselves,  on  these  authorities,  bound  to  shut  their  eyes  on  the 
■devise  of  the  realty,  and  consider  it  as  though  it  were  not  written,  and  so  they 
have  held:  Kearney  v.  Macomb,  10  N.  J.  Eq.  189.  They  might  feel  themselves 
oomi)ellcd  to  say,  with  Lord  Alvanlcy,  however  absurdly  it  sounds:  '  I  caimot 
read  the  will  without  the  word  '"  real  "  in  it;  but  I  can  say,  for  the  statute  en- 
■ablca  me,  and  1  am  bound  to  say,  that  if  a  man,  by  a  will  unattested,  gives  both 


805  CONCERNING   ELECTION.  §    485 

devised  by  the  testator,  but  in  reality  descending  to  the 
heir.  Previous  to  the  modern  statutes  on  the  subject,  a  will 
of  real  estate  invariably  spoke  from  the  date  of  its  execu- 
tion, and  not  from  the  testator's  death.  A  testator  could 
not,  by  any  form  of  words,  however  explicit  and  mandatory^ 

real  and  personal  estate,  he  never  meant  to  give  the  real  estate  ' :  Buckeridge 
V.  Ingram,  2  Ves.  652.  But  a  statute  of  New  Jersey  has  no  such  moral  power 
over  the  conscience  of  a  court  of  Pennsylvania,  to  prevent  it  from  reading  the- 
whole  will  upon  the  construction  of  a  bequest  of  personalty  within  its  rightfuJ 
jurisdiction.  We  are  dealing  only  with  the  bequests  of  personalty,  and  the 
simple  question  is,  whether  the  testator  intended  to  annex  to  them  a  condition. 
If  without  making  any  disposition  whatever  of  the  New  Jersey  estates,  dying 
intestate  as  to  them,  he  had  annexed  an  express  proviso  to  the  legacies  to  his. 
daughters,  that  they  should  release  to  their  brothers  all  their  right  and  titler 
as  heirs  at  law  to  these  lands,  it  is,  of  course,  indubitable  that  such  a  condition* 
would  have  been  efl'eetual.  Wc  are  precluded  by  no  statute  to  which  we  owe- 
obedience  from  reading  the  whole  will,  and  if  we  see  plainly  that  such, 
was  the  intention  of  the  testator,  from  carrying  it  into  effect."  The- 
learned  judge  then  cites  and  quotes  from  the  facts  and  opinions  in  the 
English  cases  upon  wills  of  estates  situate  in  Scotland,  which  are  referred 
to  in  the  preceding  note,  viz.:  Brodie  v.  Barry,  2  Ves.  &  B.  127;  Max- 
well V.  Maxwell,  2  De  Gex,  M.  &  G.  705,  and  McCall  v.  McCall,  Dru.  283, 
per  Lord  Chancellor  Sugden;  and  proceeds:  "In  this  state  of  the  authori- 
ties we  are  clear  in  holding  that  we  are  not  precluded  by  force  of  the- 
New  Jersey  statute  from  reading  the  whole  will  of  the  testator,  in  order 
to  ascertain  his  intention  in  reference  to  his  bequest  of  the  personalty  now  in 
question.  We  are  equally  clear  that  it  is  a  case  for  election.  The  intention  of 
the  testator  does  not  rest  merely  upon  the  implication  arising  from  his  careful 
division  of  his  property  among  his  children  in  different  classes,  but  he  has  in- 
dicated it  in  words  by  the  clause,  '  I  direct  and  enjoin  on  my  heirs  that  no  ex- 
ception be  taken  to  this  will,  or  any  part  thereof,  on  any  legal  or  technical  ac- 
count.' It  is  true  that  for  want  of  a  bequest  over,  this  provision  would  be  re- 
garded as  in  terrorem  only,  and  would  not  induce  a  forfeiture:  Chew's  Appeal, 
45  Pa.  St.  228.  But,  as  has  been  often  said,  the  equitable  doctrine  of  election 
is  grounded  upon  the  ascertained  intention  of  the  testator,  and  we  can  resort  to 
every  part  of  the  will  to  arrive  at  it.  '  The  intention  of  the  donor  or  testator 
ought  doubtless  to  be  the  pole-star  in  such  cases;  and  wherever  it  appears  from 
the  instrument  itself  conferring  the  benefit,  with  a  certainty  that  will  admit. 
of  no  doubt,  either  by  express  declaration  or  by  words  that  are  susceptible  of 
no  other  meaning,  that  it  was  the  intention  of  the  donor  or  testator  that  the 
object  of  his  bounty  should  not  participate  in  it  without  giving  his  assent  to 
everything  contained  in  the  instrument,  the  donees  ought  not  to  be  permitted 
to  claim  the  gift,  unless  they  will  abide  by  the  intention  and  wishes  of  its- 
author':  Philadelphia  v.  Davis,  1  Whart.  510,  per  Kennedy,  J.  This,  how- 
ever, is  not  the  only  mode  in  which  the  equity  of  the  case  can  be  reached.  The 
doctrine  of  equitable  election  rests  upon  the  principle  of  compensation,  and  not 
of  forfeiture,  which  applies  only  to  the  non-performance  of  an  express  condi- 


;§    485  EQUITY   JURISPRUDENCE.  806 

'devise  any  lands  of  which  he  should  become  seised,  or  which 
he  should  purchase  or  acquire  in  any  other  manner,  after  the 
execution  of  the  will;  the  devise  was  wholly  void,  and  the 
land  descended  to  his  heir.  A  question  as  to  election  by  the 
.heir  was  therefore  presented  by  such  a  will,  and  exactly  the 
same  twofold  rule  was  established  by  the  decisions  as  in  the 
case  of  a  will  purporting  to  devise  estates  situate  in  another 
■country,  but  inoperative  for  that  purpose.  If  the  testator 
showed,  by  the  language  of  description  and  gift,  a  clear 
intention  to  dispose  of  his  after-acquired  lands  to  a  stranger, 
and  by  the  same  will  gave  some  benefit  to  his  heir,  then  the 
heir  was  obliged  to  elect  between  these  after-acquired 
estates  which  would  descend  to  him  and  the  benefits  con- 
ferred by  the  will;  and  this  rule  applied  both  to  lands 
actually  purchased  after  the  date  of  the  will  and  to  those 
contracted  to  be  purchased.^  The  converse  of  the  rule  was 
also  well  settled.  If  the  words  of  description  and  gift  were 
general,  and  not  clearly  pointing  to  after-acquired  land,  so 
^that  the  testator's  intention  to  dispose  of  such  estates  was 
not  certain,  was  equivocal,  there  was  no  case  for  an  elec- 
:tion.^    The  same  double  rule  has  been  adopted  and  en- 

rtion.  Besides,  no  decree  of  this  court  could  authorize  the  guardians  of  the 
minors  to  execute  releases  of  their  right  and  title  to  the  New  Jersey  lands, 
-which  would  be  effectual  in  that  state.  The  alternative  relief  prayed  for  in  the 
till  is  that  which  is  most  appropriate  to  the  case."  It  was  decreed  that  the 
sons  —  devisees  —  should  receive  out  of  the  personal  property  bequeathed  to 
the  defendants  —  daughters  —  sums  equal  in  value  to  the  shares  of  the  real 
property  in  New  Jersey,  which  descended  to  the  daughters,  but  which  would 
have  vested  in  the  sons,  ii  the  will  had  been  operative  on  such  lands.  This  ad- 
■mirable  judgment  of  Mr.  Justice  Sharswood  is  in  perfect  harmony  with  the 
decision  of  the  English  court  in  Brodie  v.  Barry,  2  Ves.  &  B.  127,  Orrell  v. 
Orrell,  L.  R.  6  Ch.  302,  and  cases  of  that  kind,  since  the  devise  of  the  New 
Jer.sey  lands  was  made  in  express,  specific  terms  of  description  and  gift,  and 
■was  not  merely  inferred  from  such  general  words  as  "  all  my  real  estate, 
whatever  and  wheresoever,"  and  the  like. 

1  Churchman  v.  Ireland,  1  lluss.  &  M.  250;  4  Sim.  520;  Abdy  v.  Gordon,  3 
Russ.  278;  Schroder  v.  Schroder,  Kay,  571,  578;  18  Jur.  987;  24  L.  J.  Ch., 
N.  S.,  510,  513;  Hance  v.  Truwhitt,  2  Johns.  &  H.  216;  Greenwood  v.  Penny, 
12  Beav.  403;  Thcllusson  v.  Woodford,  13  Ves.  209,  211;  suh  nom.  Rendlesham 
V.  Woodford,  1  Dow.  249. 

2  Jolin.son  v.  Telford,  1  Russ.  &  M.  244;   Back  v.  Kett,  Jacob,  534;  and  Be* 
.Plowdcn  V.  Hyde,  2  De  Gcx,  M.  &.  G.  084,  G87. 


807  CONCERNING   ELECTION.  §    486 

forced,  under  like  circumstances,  by  the  American  courts.' 
These  questions  cannot  hereafter  arise;  for  the  rule  itself 
has  been  rendered  obsolete  by  the  English  statute,"*  and 
by  legislation  of  the  American  states,  which  have  altered, 
the  common-law  doctrine,  and  have  enacted  that  wills  of  real 
estate  as  well  as  of  personal  property  shall  speak  from  the 
time  of  the  testator's  death,  and  shall  therefore  carry  after- 
acquired  lands. 

§  486.  Will  of  Copyholds —  Finally,  a  peculiar  case  arose 
in  the  English  law,  growing  out  of  the  species  of  estate  and 
tenure  kncywn  as  copyhold,  which  should  be  briefly  men- 
tioned. Previously  to  the  act  55  Geo.  III.,  c.  192,^  devised 
copyholds  could  only  pass  where  they  had  been  previously 
surrendered  to  the  use  of  the  owner's  will.  Whenever, 
therefore,  a  testator  purported  to  devise  unsurrendered 
copyhold  property,  it  descended  for  want  of  a  surrender 
to  the  heir,  and  a  question  arose  whether  such  heir  could 
claim  both  a  legacy  under  the  will  and  also  the  copyhold 
property.  It  was  held  in  analogy  with  the  cases  described 
in  the  last  two  paragraphs,  that  if  the  testator  showed  an 
intent  to  dispose  of  the  copyholds  by  his  will,  the  heir  was 
put  to  an  election;  ^  but  if  the  devise  was  merely  general  in 
its  form,  and  thus  did  not  indicate  a  plain  intention  to 
include  the  copyholds,  no  necessity  for  an  election  existed.' 
This  matter  has  been  swept  into  oblivion  by  modem  ref  orm- 

§  485,  3  It  must  be  conceded,  however,  that  there  is  some  conflict  of  opinion 
in  the  reasoning  and  conclusions  of  the  few  American  decisions  which  have 
dealt  with  this  question.  The  English  rule  was  adopted,  and  the  necessity  of 
an  election  was  distinctly  aflSrmed,  where  the  intent  to  dispose  of  after-acquired 
lands  is  clear,  in  McElfresh  v,  Schley,  2  Gill,  181;  but  see,  for  contrary  reason- 
ing and  dicta,  Philadelphia  v.  Davis,  1  Whart.  490.  It  is  abimdantly  settled 
that  there  is  no  case  for  an  election,  if  the  intent  to  devise  the  after-acquired 
lands  is  not  clear:  Philadelphia  v.  Davis,  1  Whart.  490,  503;  Hall  v.  Hall,  2 
McCord  Eq.  269,  299,  306. 

§  485,  4  1  Vict.,  c.  26,  sec.  24. 

§  486,  1  Mix.  Preston's  Act. 
■  §  486,  2  Highway  v.  Banner,  1  Brown  Ch.  584 ;  Rumbold  V,  Rumbold,  3  Ves. 
65;  Pettiward  v.  Prescott,  7  Ves.  541 ;  Unott  v.  Wilkes,  Amb,  430;  2  Eden,  187, 

§  486,  3  Judd  V.  Pratt,  13  Ves.  168;  15  Ves.  390. 


§§    487,    488  EQUITY    JUBISPRUDENCB.  808 

atory  legislation  in  England,  and  of  course  never  had  any 
existence  in  this  country.'* 

§  487.  Second  Class. —  Cases  where  property  is  given  to 
B,  in  which  the  donor  has  only  a  partial  interest,  and  a 
partial  interest  in  it  is  held  by  A,  and  by  the  same  instru- 
ment other  property  of  the  donor  is  conferred  upon  A.  ThiS' 
class  includes  among  others  the  particular  cases  in  which 
the  donor  has  only  an  undivided  share  in  the  property 
given;  where  he  has  only  a  future  interest  in  it,  as,  for 
example,  a  remainder  or  reversion  in  fee;  where  it  is  subject 
to  encumbrances  or  charges  held  by  a  party  who  also  re- 
ceives benefits ;  where  a  widow  is  entitled  to  dower,  and  is 
a  devisee  or  legatee  under  her  husband's  will;  and  where  a 
widow  has  an  interest  in  **  community  property,'*  and 
receives  benefits  by  her  husband's  will. 

§  488.  General  Doctrine. —  The  general  doctrine  which 
governs  this  class  of  cases  has  already  been  stated 
and  illustrated.^*  Where  the  testator  has  a  partial  in- 
terest in  the  property  devised  or  bequeathed  by  his  will, 
the  necessity  of  an  election  is  always  much  less  apparent 
than  where  he  purports  to  bestow  property  in  which 
he  has  no  interest  whatever.  In  such  cases  it  is  a 
settled  rule  that  courts  will  lean  as  far  as  possible  in 

4  These  cases,  however,  and  especially  the  last  named  (Judd  v.  Pratt,  13 
Ves.  168;  15  Ves.  390)  may  be  instructive  upon  the  more  important  ques- 
tion. How  far  does  general  language  of  description  and  donation  in  a  will 
show  an  intent  on  the  part  of  the  testator  to  deal  with  and  dispose  of  a 
subject  over  which  he  has  no  power  of  disposition, —  e.  g.,  a  partial  interest, 
wife's  dower,  etc., —  and  thus  to  raise  a  case  of  election?  Many  of  the 
English  and  American  decisions  cited  in  the  foregoing  paragraphs  upon  wills 
devising  land  in  another  country,  or  after-acquired  land,  or  copyholds,  are 
extremely  important  and  useful  in  questions  of  daily  occurrence  concerning^ 
election  with  respect  to  dower,  undivided  shares  owned  by  the  testator,  and 
all  other  instances  of  a  partial  interest  disposed  of  by  means  of  general 
descriptive  language.  It  is  for  this  reason  that  1  have  stated  the  rules  in  the 
text,  and  the  principles  upon  which  they  were  rested,  although  th«  rules  them- 
selves liave  been  abrogated  by  modern  legislation. 

1  See  ante,  §§  473,  474.  and  note. 

(a)  llie  text,  §§  488-493,  is  cited  in  Pratt,  v.  Douglas,  38  N.  J.  Eq.  516;. 
636. 


809  CONCERNING    ELECTION.  §    48S 

favor  of  an  interpretation  wliich  sliows  an  intention  of 
the  testator  to  give  only  the  interest,  estate,  or  share 
which  he  is  enabled,  by  virtue  of  his  own  right,  to  deal 
with,  or  to  give  the  property  in  its  present  condition,  sub- 
ject to  all  existing  encumbrances  and  charges  upon  it.  It 
requires  a  strong,  unequivocal  expression  or  indication  of  an 
intent  on  the  part  of  the  testator  to  bestow  the  entire  prop- 
erty, and  not  simply  his  own  interest  in  it,  or  to  bestow  the 
property  freed  from  its  encumbrances  and  charges,  in  order 
to  raise  the  necessity  for  an  election.^  ^     The  affirmative 

2  Lord  RancliflFe  v.  Lady  Parkj'ns,  6  Dow,  185 ;  Birmingham  v.  Kirwan,  2 
Schoales  &  L.  444;  Maddison  v.  Chapman,  1  Johns.  &  H.  470;  Wintour  v. 
Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Padbury  v.  Clark,  2  Macn.  &  G.  298; 
Dummer  v.  Pitcher,  5  Sim.  35 ;  2  Mylne  &  K.  262 ;  Shuttleworth  v.  Greaves^ 
4  Mylne  &  C.  35 ;  Stephens  v.  Stephens,  1  De  Gex  &  J.  62 ;  Wilkinson  v.  Dent, 
L.  R.  6  Ch.  339;  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291;  Havens  v.  Sackett, 
15  N.  Y.  365;  Lewis  v.  Smith,  9  N.  Y.  502;  61  Am.  Dec.  706;  Adsit  v.  Adsit, 
2  Johns.  Ch.  448;  7  Am.  Dec.  539;  Bull  v.  Church,  5  Hill,  206;  Fuller  v. 
Yates,  8  Paige,  325 ;  Sandford  v.  Jackson,  10  Paige,  266 ;  Vernon  v.  Vernon, 
53  N.  Y.  351;  I^fevre  v.  Lefevre,  59  N.  Y.  435;  Reed  v.  Dickerman,  12  Pick. 
146;  Morrison  v.  Bowman,  29  Cal.  337,  348;  Peck  v.  Brummagim,  31  Cal. 
440,  447;  89  Am.  Dec,  195;  De  Godey  v.  Godey,  39  Cal.  157,  164;  In  re 
Buchanan's  Estate,  8  Cal.  507 ;  Beard  v.  Knox,  5  Cal.  252 ;  63  Am.  Dec.  125 ; 
Burton  v.  Lies,  21  Cal.  91;  In  re  Silvey's  Estate,  42  Cal.  211.  In  the  case  of 
Havens  v.  Sackett,  15  N.  Y.  365,  the  doctrine  is  stated  in  so  admirably  clear 
and  accurate  a  manner  by  Denio,  C.  J.,  that  I  shall  quote  from  his  opinion  at 
some  length.  One  Havens,  the  testator,  being  entitled,  under  the  will  of  a 
deceased  brother,  to  certain  bank  stocks,  in  case  he  should  survive  that 
brother's  widow,  bequeathed,  by  a  codicil  of  his  ovm  will,  to  the  plaintiff, 
"  the  stocks  given  to  me  by  my  said  brother  after  the  decease  of  his  widow." 
The  testator  also,  by  the  same  codicil,  devised  certain  lands  which  he 
confessedly  owned  to  his  children,  the  defendants.  The  will  of  the 
testator's  brother  had  given  those  same  stocks  to  the  testator's  children 
(the  defendants),  in  case  their  father  should  not  survive  the  brother's 
widow.  In  fact,  the  testator  died  before  the  brother's  widow,  so  that 
the  bequest  to  the  plaintifT  of  the  stocks  became  nugatory,  and  they  be- 
longed to  the  defendants  under  the  provisions  of  their  uncle's  will.  The 
plaintiff  claimed  that  the  defendants  were  bound  to  elect  between  the  land 
given  them  by  the  will  and  the  stocks  which  came  to  them  under  their 
uncle's  will,  but  which  their  father  had  bequeathed  to  the  plaintiff.  The 
court  of  appeals,  reversing  the  judgment  of  the  supreme  court,  held  that  there 

(b)  The  text  is  cited  to  this  effect  See,  also,  In  re  Gilmore,  81  Cal.  240, 
in  Pratt  v.  Douglas,  38  N.  J.  Eq.  516,  22  Pac.  655;  Sherman  v.  Lewis,  44 
636;  Toney  v.  Spragins,  80  Ala.  541.       Minn.  107,  46  N.  W.  318. 


§    488  EQUITY   JURISPRUDENCE.  810 

branch  of  the  rule  is  equally  well  settled,  that  if  a  testator 
is  only  entitled  to  a  partial  interest  in  the  property,  as 
where  he  owns  an  undivided  share,  or  a  future  estate,  or 
holds  the  property  subject  to  some  encumbrance  or  charge, 
and  uses  language  of  description  and  donation,  which  shows 
an  unmistakable  intention  on  his  part  to  dispose  of  the 
entire  property,  or  the  property  free  from  the  existing  en- 
cumbrance or  charge,  and  if  the  owner  of  the  other  part  or 

was  no  necessity  for  an  election.  Denio,  C.  J.,  after  stating  the  general  rule 
as  follows :  "  One  who  accepts  a  benefit  under  a  deed  or  will  must  adopt  the 
whole  contents  of  the  instrument,  conforming  to  all  its  provisions  and  re- 
nouncing every  right  inconsistent  with  it;  for  example,  if  a  testator  has 
affected  to  dispose  of  property  not  his  own,  and  has  given  a  benefit  to  the 
person  to  whom  that  property  belongs,  the  legatee  or  devisee  accepting  the 
benefit  so  given  to  him  must  make  good  the  testator's  attempted  disposition," 
—  proceeded  to  apply  the  doctrine:  "  If  the  codicil  can  be  so  read  that  it  shall 
appear  that  the  testator  intended  only  to  dispose  of  his  own  contingent 
interest,  or  in  other  words,  to  dispose  of  the  stock  on  condition  that  it  should 
come  to  him  by  his  surviving  his  sister-in-law,  and  that  he  did  not  attempt 
to  do  more,  then  it  cannot  be  said  that  the  plaintiff  is  disappointed  by  the 
defendants  claiming  their  share  of  the  stock,  and  the  rule  does  not  apply. 
Among  the  numerous  cases  which  I  have  examined,  I  do  not  find  any  which 
presents  this  feature.  It  is  indeed  laid  down  that,  in  order  to  furnish  a  case 
for  compelling  an  election,  it  must  appear  clearly  and  certainly  that  the 
interest  attempted  to  be  disposed  of  was  such  as  the  testator  did  not  o-wn.  A 
person,  it  is  said,  is  not,  without  strong  indications  of  such  an  intent,  to  be 
understood  as  dealing  with  that  which  does  not  belong  to  him."  He  cites 
Dummer  v.  Pitcher,  2  Mylne  &  K.  262,  5  Sim.  35,  stating  the  facts  and  decision 
of  the  court,  and  then  proceeds :  "  The  numerous  class  of  cases  in  which  a 
provision  has  been  made  for  a  wife  by  will,  and  not  expressed  to  be  in  lieu 
of  dower,  and  where  the  real  estate  has  been  devised  to  another  by  the 
same  will,  afford  some  light  upon  this  question.  At  the  first  sight,  a  devise 
of  a  piece  of  land,  or  the  direction  in  a  will  that  a  particular  parcel  of  real 
estate  should  be  sold  to  raise  legacies,  would  seem  to  be  hostile  to  the  idea 
of  a  life  estate  existing  in  another  in  one  third  of  the  same  land;  and  there- 
fore, where  in  sucli  cases  the  will  makes  a  provision  for  the  wife,  it  would 
appear  to  be  within  the  rule  requiring  her  to  elect,  though  it  should  not  be 
stated  in  terms  that  the  provision  was  in  lieu  of  dower.  But  the  courts 
have  held  that  such  a  devise  or  direction  is  not  inconsistent  with  or  repug- 
nant to  the  claim  of  dower,  and  hence  that  the  husband  is  not  in  such  cases 
to  be  understood  to  have  attempted  to  dispose  of  the  dower  estate  of  the  wife. 
The  right  of  dower  is  a  title  paramount  to  that  of  the  husband,  and  when 
he  devises  tlie  land,  though  without  any  qualifying  words,  an  exception  of 
the  wife's  right  to  dower  is  implied;"  citing  Adsit  v.  Adsit,  2  Jolins.  Ch. 
448;  7  Am.  Dec.  539;  Church  v.  Bull,  2  Denio,  430;  43  Am.  Dec.  754;  5  Hill, 
207. 


:811  CONCERNING   ELECTION.  §    488 

holder  of  tlie  encumbrance  or  charge  also  receives  benefits 
mider  the  will,  then  a  case  for  an  election  by  such  beneficiary 
is  presented.  The  grounds  of  the  election  in  such  cases 
were  accurately  stated  by  Lord  Redesdale  in  a  decision 
which  has  since  been  regarded  as  leading:  **  The  general 
rule  is,  that  a  person  cannot  accept  and  reject  the  same 
instrument,  and  this  is  the  foundation  of  the  law  of  election, 
on  which  courts  of  equity  have  grounded  a  variety  of  deci- 
sions in  cases  both  of  deeds  and  of  wills."  *  This  being  the 
true  criterion,  it  follows  that,  in  order  to  create  the  neces- 
sity of  an  election  in  such  cases,  the  dispositions  of  the  will 
must  so  clearly  indicate  the  testator's  intention  to  give 
something  more  than  his  own  partial  interest,  that  the  enjoy- 
ment by  the  donee  of  the  benefits  conferred  upon  him,  with- 
out carrying  out  the  other  provisions,  would  be  an 
acceptance  and  a  rejection  at  the  same  time  of  the  same 
instrument.*  *^    I  shall  now  show  the  maimer  in  which  these 

3  Birmingham  v,  Kirwan,  2  Schoales  &  L.  444,  449.  The  question  waa, 
whether  a  widow  was  put  to  an  election  between  a  bequest  contained  in  her 
husband's  Avill  and  her  dower  estate  in  his  lands  which  had  been  devised 
away.  Lord  Kedesdale  held  that  it  is  not  necessary  to  use  express  words  of 
exclusion,  in  order  to  put  the  widow  to  an  election;  but  that  a  person  cannot 
both  accept  and  reject  the  same  instrument,  and  if,  from  the  whole  will  taken 
together,  it  was  the  manifest  intention  that  the  testamentary  provision  should 
be  received  in  lieu  of  dower,  it  would  make  an  election  necessary.  But  the 
language  of  the  will  must  not  be  doubtful  nor  ambiguous. 

4  Parker  v.  Sowerby,  4  De  Gex,  M.  &  G.  321 ;  Padbury  v.  Clark,  2  Macn.  Sl 
G.  298;  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641.  21  Beav.  447;  Howells  v. 
Jenkins,  1  De  Gex,  J.  &  S.  617,  2  Johns.  &  H.  706;  Stephens  v.  Stephens,  1 
De  Gex  &  J.  62 ;  Dummer  v.  Pitcher,  2  Mylne  &  K.  262 ;  5  Sim.  35 ;  Shuttle- 
worth  V.  Greaves,  4  Mylne  &  C.  35;  Wilkinson  v.  Dent,  L.  R.  6  Ch.  339; 
Grosvenor  v.  Durston,  25  Beav.  97 ;  Usticke  v.  Peters,  4  Kay  &  J.  437 ;  Fitz- 
simmons  v.  Fitzsimmons,  28  Beav.  417:  Miller  v.  Thurgood,  33  Beav.  496; 
Bull  V.  Church,  5  Hill,  207 ;  2  Denio,  430 ;  43  Am.  Dec.  754 ;  Fuller  v.  Yeates, 

8  Paige,  325 ;  Sandford  v.  Jackson,  10  Paige,  266 ;  Vernon  v.  Vernon,  53  N.  Y. 
351;  Savage  v.  Burnham,  17  N.  Y.  561,  577;  Leonard  v.  Steele,  4  Barb.  20; 
Lewis  V.  Smith,  9  N.  Y.  502;  61  Am.  Dec.  706;  Mills  v.  Mills,  28  Barb.  454; 
Morrison  v.  BoAvman,  29  Cal.  348;  Chapin  v.  Hill,  1  R.  I.  446;  Collins  v. 
Carman,  5  Md.  503;  Stark  v.  Hunton,  1  N.  J.  Eq.  216;  Higginbothara  v. 
Comwell,  8  Gratt.  83;  56  Am.  Dec.  130;  Douglas  v.  Feay,  1  W.  Va.  26;  Hyde 

(c)   Brown  v.  Ward,  103  N.  C.  178,       devises   the   fee)  ;    Ditch   v.    Sennott, 

9  S.  E.  300    (owner  of  life  interest       117  111.  362,  7  N.  E.  640. 


§    489  EQUITY    JURISPRUDENCE.  812' 

general  doctrines  have  been  applied  to  various  particular 
conditions  of  fact,  and  the  special  rules  which  have  been 
established  with  reference  thereto. 

§  489.  The  Donor  Owns  only  an  Undivided  Share  of  the 
Property. —  If  a  testator  owning  an  undivided  share  uses 
language  of  description  and  donation  which  may  apply  ta 
and  include  the  whole  property,  and  by  the  same  will  gives 
benefits  to  his  co-owner,  the  question  arises  whether  such  co- 
owner  is  bound  to  elect  between  the  benefits  conferred  by  the- 
will  and  his  own  share  of  the  property.  Prima  facie  a 
testator  is  presumed  to  have  intended  to  bequeath  that 
alone  which  he  owned, —  that  only  over  which  his  power  of 
disposal  extended.  Wherever,  therefore,  the  testator  does 
not  give  the  whole  property  specifically,  but  employs  gen- 
eral words  of  description  and  donation,  such  as  "  all  my 
lands,"  and  the  like,  it  is  well  settled  that  no  case  for  an 
election  arises,  because  there  is  an  interest  belonging  to 
the  testator  to  which  the  disposing  language  can  apply^ 
and  the  prima  facie  presumption  as  to  his  intent  will  con- 
trol.^ *    On  the  other  hand,  if  the  testator  devises  the  prop- 

V.  Baldwin,  17  Pick.  303,  308;  Smith  v.  Guild,  34  Me.  443,  447;  Weeks  v. 
Patten,  18  Me.  42;  36  Am.  Dec.  696;  George  v.  Bussing,  15  B.  Mon.  558; 
Apperson  v.  Bolton,  29  Ark.  418;  Ailing  v.  Chatfield,  42  Conn.  270;  Bro^vn 
V.  Brown,  55  N.  H,  106;  Cox  v.  Rogers,  77  Pa.  St.  160;  Young  v.  Pickens^ 
49  Ind.  23;  Metteer  v.  Wiley,  34  Iowa,  214;  Colgate  v.  Colgate,  23  N.  J.  Eq. 
372;  Worthen  v.  Pearson,  33  Ga.  385;  81  Am.  Dec.  213. 

1  Dummer  v.  Pitcher,  2  Mylne  &  K.  262;  Usticke  v.  Peters,  4  Kay  &  J.  437; 
Miller  v.  Thurgood,  33  Beav.  406,  per  Lord  Romilly,  M.  R. ;  Rancliffe  v. 
ParkjTis,  6  Dow,  149.  In  Miller  v.  Thurgood,  33  Beav.  496,  a  testator  owned 
a  freehold  lease  in  Potter  Street  and  another  in  South  Street,  and  an  undivided 
two  thirds  of  a  house  and  of  eighteen  cottages  in  South  Street,  the  other 
third  belonging  to  his  wife.  He  devised  all  his  freehold,  messuages,  cot- 
tages, etc.,  in  the  two  streets,  specifically  mentioning  them,  to  his  wife  for  her 
life,  and  after  her  death  to  his  children  in  fee.  Lord  Romilly  held  that  she 
■was  bound  to  elect  between  her  one  third  of  the  house  and  cottages,  and  the 
benefits  given  by  the  will.     He  said:    "  If  the  testator  had  devised  his  property 

(a)    The  text   is  cited   in   Penn   v.  Spragins,  80  Ala.  541.     See,  also,  In 

Gwggcnheimer,     76     Va.     8:W,     847;  re  Gilmore,  81  Cal.  240,  22  Pac.  655 ; 

Pratt  V.   Douglas,  38  N.  J.  Eq.   516,  Haack  v.  Weicken,  118  N.  Y.  75,  23 

638;   In  re  Gotzian,  34  Minn.  159,  57  N.  E.  133. 
Am.  Rep.  43,  24  N.  W.  920;  Tonty  v. 


"813  CONCERNING    ELECTION.  §    489 

erty  specifically  by  language  indicating  a  specific  gift  of 
the  property,  an  election  becomes  necessary.  It  seems  now 
to  be  settled  by  the  more  recent  English  decisions  that 
when  the  owner  of  an  undivided  share  devises  or  bequeaths 
the  property  by  words  of  description  and  donation  import- 
ing an  intent  to  give  the  entirety,  then  a  case  of  election  is 
raised  against  the  other  co-owner  who  receives  a  benefit 
under  the  same  will.^^     The  conclusion  which  is  plainly 

in  these  terms,  *  all  and  every  my  freeholds  in  Potter  Street  and  South  Street, 
and  elsewhere/  I  should  be  of  opinion  that  no  case  for  an  election  arose.  But 
lie  specifically  points  to  his  cottages  in  South  Street,"  etc. 

2  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35;  Miller  v.  Thurgood,  33  Beav. 
■496;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Fitzsimmons  v.  Fitzsimmons,  28 
Beav.  417;  Grosvenor  v.  Durston,  25  Beav.  97;  Howells  v.  Jenkins,  2 
Johns.  &  H.  706;  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  295;  Wilkinson  v. 
Dent,  L.  R.  6  Ch.  339.  In  Padbury  v.  Clark,  2  Macn.  &  G.  298,  a  testator 
owned  an  undivided  half  of  a  certain  house,  and  one  Mary  Cox  owned  the  other 
half.  He  devised  ""all  that  my  freehold,  messuage,  and  tenement,  with 
"the  garden  and  all  the  appurtenances,  situate  at  Tottenham,  and  now 
■on  lease  to  T.  Upton,"  to  the  plaintiff,  and  gave  certain  bequests  to  Mary 
Cox.  Lord  Cottenham  held  that  this  language  showed  a  clear  intention 
to  devise  the  house  as  an  entirety,  and  put  Mary  Cox  to  an  election.  In 
Howells  V.  .Jenkins,  2  Johns.  &  H.  706,  a  testator,  owning  an  undivided  half 
of  two  farms,  another  undivided  fourth  of  which  belonged  to  W.,  devised  one 
of  these  farms  to  E.  and  W.,  and  W.  was  held  bound  to  elect.  In  Grosvenor 
V.  Durston,  25  Beav.  97,  a  testator,  having  certain  public  funds  which  stood  in 
the  joint  names  of  himself  and  his  wife,  bequeathed  away  his  funded  stock 
generally,  and  also  made  a  provision  for  his  widow;  she  was  put  to  her 
election.  In  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  295,  a  testator  was  entitled 
to  one  half  of  a  fund  and  a  certain  lady  was  entitled  to  the  other  half.  In 
Tiis  will,  after  reciting  that  he  was  entitled  to  the  whole  fund,  he  purported 
lo  bequeath  the  whole  and  to  give  one  half  of  it  to  the  husband  of  the  lady, 
who  was  really  owner  of  the  other  half.  This  husband  had  become  adminis- 
trator of  his  wife  on  her  death,  and  succeeded  to  her  half  by  virtue  of  his 
administration.  The  court  held  that  ordinarily  under  the  general  rule,  a 
case  for  an  election  would  have  arisen,  but  the  husband  was  not  required  to 
«lect  solely  because  he  was  not  entitled  to  the  other  half  in  his  own  right. 
In  Wilkinson  v.  Dent,  L.  R.  6  Ch.  339,  a  testatrix  owned  an  undivided  half 
of  an  estate.  She  devised  the  estate  as  follows:  "I  give  and  devise  all  and 
singular  the  estate  and  mines  of  Aroa,  in  Columbia,  formerly  the  estate  of 
Simon  Bolivar,"  etc.,  upon  trusts,  for  the  benefit,  among  others,  of  the  parties 
who  were  entitled  to  some  interest  in  the  other  half  of  the  estate.  James, 
li.  J.,  said:    "It  appears  to  me  utterly  impossible  to  suppose  that  when  she 

(b)  The  text  is  cited  and  followed  847.  See,  also.  Ditch  v.  Sennott,  117 
in  Penn  v.  Guggenheimer,  76  Va,  839,       III,  362.  7  N.  K  640. 


§    490  EQUITY    JURISPRUDENCE.  814 

deducible  from  these  recent  decisions  in  England  is,  that 
when  a  person  owns  an  undivided  interest  or  share  in 
any  species  of  property, —  a  house  and  lot,  a  farm,  a  fund 
of  securities,  or  a  fund  of  money, —  and  he  does  not  use 
general  words  of  gift,  such  as  '*  all  my  estate,"  '*  all  my 
property,"  and  the  like,  but  purports  to  give  the  whole 
thing  itself,  using  language  which,  by  a  reasonable  inter- 
pretation, must  necessarily  describe  and  define  the  whole 
corpus  of  the  thing  in  which  his  partial  interest  exists,  ae 
a  distinct  and  identified  piece  of  property,  then  an  inten- 
tion to  bestow  the  whole,  and  not  merely  the  testator's  un- 
divided share,  must  be  inferred,  and  a  case  for  an  election 
arises.  The  language  of  description  may  be  by  metes 
and  bounds,  or  may  be  any  other  form  of  words  which 
will  serve  clearly  to  point  out  and  identify  the  entire  sub- 
ject-matter.^ ^ 

§  490.  The  Donor  Owns  only  a  Future  Interest. —  The  rule 
thus  established  with  reference  to  present  undivided  in- 
terests is  not  applied,  at  least  with  equal  strictness,  to 

said,  '  I  give  and  devise  all,'  etc.,  she  meant  only  to  give  such  estate  and 
interest  as  she  had  in  the  property.  A  will  must  be  construed  reasonably, 
even  where  by  so  doing  parties  are  put  to  their  election."* 

3  As  an  illustration,  if  a  testator  owns  an  undivided  half  of  a  certain  farm, 
and  should  devise  the  farm  itself  as  a  whole,  either  describing  it  by  metes 
and  bounds,  or  identifying  it  as  a  whole  by  any  other  form  of  words,  an 
election  would  be  necessary.  The  cases  which  have  arisen  in  the  United  States 
presenting  the  closest  analogy  to  these  recent  English  decisions  are  those  which 
are  found  in  the  California  reports  dealing  with  the  "  community  property  " 
of  the  husband  and  wife.  It  will  be  seen,  in  a  subsequent  paragraph,  that 
the  rule  as  stated  in  the  text  and  established  by  the  English  courts  has  not 
been  adopted  by  the  California  courts  under  circmustances  closely  analogous.* 

(c)  In  Wooley  v.  Schrader,  116  111.  will   directing   that   compensation   be 

29,  4  N.  E.  658,  the  testator  had  the  made    to   the    son   for    improvement* 

legal  title  to  a  piece  of  land,  and  his  made  by  him  was  decisive  in  showing 

son    had    the    equitable    title    and    a  that  the  testator  intended  to  dispose 

right  to  a  conveyance.     The  testator  of  the  entire  fee,  and  not  his  mere 

devised  the  land  to  another  by  gen-  legal  title,  and  that  the  son  was  put 

eral  description,  and  made  other  pro-  to  an  election. 

Tisions  for  his  son.     In  detc-rmining  (d)  llie  text  is  quoted  and  followed 

whether  the  entire  estate,   legal   and  in  Penn  v.  Guggenheinier,  76  Va.  839, 

equitable,  was  inU-nded  to  be  dt'viscl,  847. 
the  court  held  that  a  provision  in  tlie  («)  See  post,  §§  603-505. 


815  CONCERNING   ELECTION.  §    490 

cases  where  the  donor  has  only  a  future  interest,  as  a 
remainder  or  reversion  in  fee.  If  a  testator,  owning  a  re- 
mainder or  reversion  in  fee,  with  no  power  over  the  prece- 
dent life  estates,  uses  general  language  of  disposal,  such  as 
*'  all  my  estate,"  or  even  disposes  of  the  property  as  a 
whole  by  name,  he  is  to  be  regarded  as  intending  only  to 
dispose  of  his  future  interest,  and  no  necessity  for  an  elec- 
tion arises.^  This  result,  however,  is  not  universal.  Al- 
though a  testator  must  be  taken  prima  facie  to  have  in- 
tended only  to  dispose  of  what  belongs  to  him,  there  is  no 
such  rule  as  that  where  a  testator  has  a  limited  interest  in 
property  forming  the  subject  of  a  devise  or  bequest,  the  in- 
tention to  make  a  disposition  extending  beyond  that  interest 
cannot  be  made  clear  by  anything  short  of  positive  declara- 
tion. The  context  of  the  will,  and  the  aptitude  of  the  testa- 
mentary limitations  to  the  testator's  interest,  ought  to  be 
regarded.  If,  from  the  context  of  the  will  and  all  the  dis- 
positions taken  together,  an  intention  on  the  part  of  the 
testator  is  clear  to  give  the  antecedent  life  estates  as  well 
as  his  own  remainder  or  reversion  in  fee,  then  an  election 
becomes  necessary  by  those  who,  owning  the  life  estates, 
have  received  other  benefits  from  the  will.^  It  has  also 
been  held  that  where  a  testator  has  a  contingent  interest 
only  in  certain  property, —  an  interest  which  will  only  vest 
in  him  upon  the  happening  of  a  contingent  event, —  and  he 
bequeaths  the  property  by  language  of  gift  general  in  its 
terms  and  absolute  in  its  form,  without  referring  to  the  con- 

1  Rancliffe  v.  Paikyns,  6  Dow,  149. 

SWintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  649,  650;  21  Beav.  447.  The 
testator  had  several  different  estates.  Some  of  them  he  owned  absolutely;  but 
in  one  of  them  he  owned  only  the  fee  in  remainder,  the  life  estates  being  held 
by  others.  His  will  made  very  complicated  dispositions,  which  applied  alike 
to  all  the  estates.  From  the  whole  scheme  of  the  will  the  court  held  the 
intent  was  clear  to  dispose  of  the  antecedent  life  interest  in  the  last- 
mentioned  estate,  as  well  as  the  remainder  in  fee,  and  an  election  was  neces- 
sary. For  an  extract  from  the  opinion,  see  ante,  §  474,  note.  See  also  Smith 
V.  Smith,  14  Gray,  532;  Hyde  v.  Baldwin,  17  Pick.  308;  Smith  v.  Guild,  34 
Me.  443;  Hamblett  v.  Hamblett,  6  N.  H.  333;  Fulton  v.  Moore,  25  Pa.  St. 
4C8 ;   Weeks  v.  Patten,  18  Me.  42,  36  Am.  Dec.  696. 


^    491  EQUITY   JURISPRUDENCE.  816 

tingent  character  of  his  interest,  he  must  be  assumed  to  have 
intended  to  dispose  only  of  his  own  contingent  interest,  and 
not  to  make  an  absolute  gift.  If  the  contingency  should 
not  happen,  and  the  bequest  therefore  failed,  no  election 
would  be  necessary  by  the  person  who  succeeded  to  prop- 
erty and  who  also  took  a  benefit  under  the  will.' 

§  491.  Devise  of  Lands  Encumbered,  where  the  Encumbran- 
cers also  Receive  Benefits  under  the  Will. — ^Where  a  testator 
owns  property  which  is  subject  to  some  encumbrance  or 
charge,  and  he  devises  it,  distinctly  describing  it,  but  not 
making  any  provision  with  respect  to  the  encumbrance,  and 
at  the  same  time  he  gives  some  other  bequest  to  the  encum- 
brancer or  holder  of  the  charge,  no  case  for  an  election  by 
the  latter  is  thereby  raised.  The  testator  is  regarded  as 
having  intended  to  devise  only  the  property  subject  to  the 
charge  or  encumbrance.^    The  same  rule  has  been  applied 

3  Havens  v.  Sackett,  15  N.  Y.  365.  The  testator  was  entitled  to  certain 
bank  stocks,  provided  he  should  survive  his  brother's  widow,  but  in  case  he 
died  before  the  widow  the  stocks  should  belong  to  the  children.  He  be- 
queathed the  stocks  to  the  plaintiff  as  follows :  "  The  stocks  given  to  me  by 
my  said  brother  after  the  decease  of  his  widow,"  The  testator  dying  before 
his  widow,  the  stocks  passed  to  his  children;  and  they  were  held  not  bound 
to  elect  between  these  stocks  and  the  benefits  given  by  their  father's  will. 
See  extract  from  the  opinion,  ante,  §  488,  note. 

1  Stephens  v.  Stephens,  1  De  Gex  &  J.  62 ;  3  Drew.  697.  The  question  in 
this  case  was  whether  the  defendants,  brothers  and  sisters  of  the  plaintiff, 
were  not  bound  to  elect  between  the  benefits  given  to  them  by  the  will  of 
their  father,  John  S.,  and  the  benefit  of  a  charge  for  ten  thousand  pounds, 
created  in  their  favor  by  the  will  of  their  grandfather,  William  S.,  upon  an 
estate  which  the  plaintiff,  the  elder  brother,  took  under  that  will,  but  which 
the  father,  John  S.,  had  also  purported  to  devise  to  him  by  his  will.  The 
court  of  appeal.  Lord  Chancellor  Cranworth,  and  Lords  Justices  Knight 
Bruce  and  Turner,  held  that  under  the  settled  rule  applicable  under  such  cir- 
cumstances, the  defendants  were  not  bound  to  elect.  Lord  Cranworth  said 
(p.  71):  "Where  a  testator  simply  gives  an  estate,  without  saying  more, 
he  is  to  be  taken  to  mean  the  estate  in  its  present  condition,  subject  to  the 
existing  charges  upon  it.  Lord  Chief  Baron  Eyre,  in  Blake  v.  Bunbury,  1  Ves. 
514,  says:  '  If  there  is  an  encumbrance  upon  the  estate  devised  in  such  terms  ' 
(i.  e.,  in  general  terms  applicable  to  an  estate  of  which  the  testator  is  abso- 
lute owner),  '  the  mere  language  of  the  will  affords  no  inference  of  an  intention 
to  dispose  of  the  estate  free  from  that  encumbrance.' "  An  intention  to 
devise  free  from  the  encumbrance,  so  as  to  put  the  encumbrancer  also  receiv- 
ing a  benefit  to  his  election,  must  appear  conclusively  from  the  words  of  the 
will:    Sadlicr  v.  Butler,  1  I.  R.  Eq.  415,  423. 


S17  CONCERNING   ELECTION.  §§  492,  493 

to  general  creditors,  where  a  will  contains  a  devise  or  be- 
quest of  property  in  trust  for  the  payment  of  the  testator's 
debts.2 

§  492.  Dower  —  Election  by  a  Widow  between  her  Dower 
and  Benefits  Given  by  her  Husband's  Will. —  Where  a  hus- 
band devises  or  bequeaths  property  to  his  wife,  the  ques- 
tion arises,  whether  she  must  elect  between  this  benefit  and 
her  dower,  or  whether  she  is  entitled  to  claim  both  her 
dower  and  the  testamentary  gift.  This  is  by  far  the  most 
important  and  frequent  aspect  in  which  the  doctrine  of 
•election  has  come  before  the  American  courts, —  so  im- 
portant that  election  itself  has  sometimes  been  treated 
by  American  writers  as  a  mere  incident  of  dower.  In  con- 
sidering this  branch  of  the  subject,  I  purpose,  in  the  first 
place,  to  state  the  general  rule  for  the  interpretation  of 
such  wills  as  settled  by  judicial  authority,  and  then  to  ex- 
plain the  most  important  kinds  of  particular  testamentary 
dispositions  which  have  given  rise  to  more  special  and 
definite  rules. 

§  493.  The  General  Rule. —  In  England  and  in  the  states 
where  the  common-law  dower,  or  an  interest  of  the  wife 
analogous  thereto,  exists,  the  following  general  rule  for  the 
interpretation  of  a  husband's  will,  and  for  the  determina- 
tion of  his  widow's  obligation  to  elect,  has  been  established 
by  the  overwhelming  weight  of  authority.  If  the  will  de- 
clares in  express  words  that  the  testamentary  gift  is  in- 
tended to  be  in  lieu  of  dower,  the  widow  is  obliged,  even  at 
law,  to  elect.^    When,  however,  the  will  contains  no  such 

2  Thus  where  the  will  contains  such  a  devise,  it  has  been  held  that  creditors 
need  not  elect  between  the  benefit  of  such  provision,  and  the  enforcement  of 
their  legal  rights  against  other  funds  or  assets  of  the  estate  disposed  of  by 
the  will:  Kidney  v.  Cousniaker,  12  Yes.  136,  154,  per  Sir  William  Grant; 
Clark  V.  Guise,  2  Ves.  Sr.  617;  Deg  v.  Deg,  2  P.  Wms.  412,  418.  The 
doctrine  of  these  cases,  viz.,  that  the  necessity  of  election  does  not  extend  to 
creditors,  has  been  rejected  by  certain  decisions  of  the  Pennsylvania  supreme 
court,  which  seem  to  require  an  election  by  the  creditors  under  such  circum- 
stances. See  Irwin  v.  Tabb,  17  Serg.  &  R.  419,  423;  Adlum  v.  Yard,  1  Rawle, 
163,  171;  18  Am.  Dec.  608. 

1  Nottley  V.  Palmer,  2  Drew.  93 ;  Boynton  v.  Boynton,  1  BroAvn  Ch.  445, 

Vol.  1  —  52 


§493  EQUITY   JUliiJaPJiUDENCE.  818 

express  words,  every  devise  or  bequest  made  to  the  wife  is 
presumed  to  be  intended  as  a  provision  in  addition  to  her 
dower  right,  and  in  general,  she  will  not  be  required  to 
elect.  The  duty  of  electing  may  arise  even  in  the  absence 
of  any  express  declaration  that  the  testamentary  gift  is 
in  lieu  of  dower,  but  can  only  arise  from  a  clear,  unequivo- 
cal intention  exhibited  in  provisions  of  the  will  incompatible 
with  the  right  of  dower.  **  If  there  is  anything  ambiguous 
or  doubtful,  if  the  court  cannot  say  that  it  was  clearly  the 
intention  to  exclude,  then  the  averment  that  the  gift  was 
made  in  lieu  of  dower  cannot  be  supported ;  and  to  make  a 
case  of  election,  that  is  necessary,  for  a  gift  is  to  be  taken 
as  pure  until  a  condition  appear.  The  only  question  made 
in  all  the  cases  is,  whether  an  intention,  not  expressed  in 
apt  words,  can  be  collected  from  the  terms  of  the  instru- 
ment. The  result  of  all  the  cases  of  implied  intention  seems 
to  be,  that  the  instrument  must  contain  some  provision  in- 
consistent with  the  assertion  of  a  right  to  demand  a  third 
of  the  lands,  to  be  set  out  by  metes  and  bounds."^  **  The 
inquiry  is,  whether  an  intention  in  the  testator  that  the 
testamentary  gift  is  to  be  in  lieu  of  dower  can  be  collected 
by  clear  and  manifest  implication  from  the  provisions  of 
the  will.  To  enable  us  to  deduce  such  an  implied  intention, 
the  'ilaim  of  dower  must  be  inconsistent  with  the  will,  and 
repugnant  to  its  dispositions,  or  some  of  them.  It  must,  in 
fact,  disturb  or  disappoint  the  will."^  "A  wife  cannot  be 
deprived  of  her  dower  by  a  testamentary  disposition  in  her 
favor,  unless  the  testator  has  declared  the  same  to  be  in  lieu 
of  dower,  either  in  express  words,  or  by  necessary  implica- 
tion. To  compel  a  widow  to  elect  between  the  dower  and  a 
testamentary  provision,  where  the  testator  has  not  in  terms 
declared  his  intention  on  the  subject,  it  is  not  sufficient  that 
the  will  renders  it  doubtful  whether  he  intended  that  she 
should  have  her  dower  in  addition  to  the  provision;  but 
the  terms  and  provisions  of  the  will  must  be  totally  incon- 

2  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  452,  per  Lord  Redesdale. 
•  Adflit  V.  Adflit.  2  Johns.  Ch.  448;  7  Am.  Dec.  530,  per  Chancellor  Kent. 


819  CONCEBNING  ELECTION.  §  49^ 

sistent  with  her  claim  of  dower  in  the  property  in  which 
such  dower  is  claimed."*  It  results  that  whatever  be  the 
dispositions  of  the  will  to  the  widow  and  to  others,  the  pre- 
sumption is  strong  in  favor  of  the  intention  that  the  widow- 
shall  have  both  the  gift  and  her  dower;  the  courts  lean 
heavily  in  support  of  this  presumption;  nothing  short  of 
a  perfect  incongruity  between  the  dispositions  of  the  will 
and  the  widow's  claim  to  set  out  her  dower  hy  metes  and- 
hounds  from  her  husband's  lands  can  put  her  to  an  election. 
However  positive  and  absolute  the  testator's  language  of 
donation,  the  court  will,  if  possible,  read  it  as  meaning, 
"  I  devise  and  bequeath  all  my  interest  in  the  land  subject 
to  my  wife's  dower  right. "^    It  must  also  be  carefully  ob- 

4  Church  V.  Bull,  2  Denio,  430;  43  Am.  Dec.  754,  per  Chancellor  Walworth. 

BDowson  V.  Bell,  1  Keen,  761;  Harrison  v.  Harrison,  1  Keen,  7G5;  Hol- 
dich  V.  Holdich,  2  Younge  &  C.  18,  23;  Parker  v.  Sowerby,  4  De  Gex,  M.  &: 
G.  321,  and  cases  cited;  Thompson  v.  Burra,  L.  R.  16  Eq.  592;  Roberts  v. 
Smith,  1  Sim.  &  St.  513;  Roadley  v.  Dixon,  3  Russ.  192,  200,  201;  Villa. 
Real  V.  Lord  Galway,  1  Brown  Ch.  292,  note;  Amb.  682;  Pitts  v.  Snow- 
den,  1  Brown  Ch.  292,  note;  Foster  v.  Cooke,  3  Brown  Ch.  347;  Pearson  t.. 
Pearson,  1  Brown  Ch.  292;  French  v.  Davies,  2  Ves.  572;  Greatorex  v. 
Gary,  6  Ves.  615;  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444;  Lord 
Dorchester  v.  Earl  of  Etlingham,  Coop.  419;  Dickson  v.  Robinson,  1  Jacobs 
503;  Taylor  v.  Taylor,  1  Younge  &  C.  727;  Pepper  v.  Dixon,  17  Sim.  200; 
Lowes  V.  Lowes,  5  Hare,  501;  Reynolds  v.  Torin,  1  Russ.  129,  133.  In 
Dowson  V.  Bell,  1  Keen,  761,  Lord  Langdale,  M.  R.,  said  (p.  764): 
"  That  the  testator  had  himself  no  intention  to  leave  his  wife  her 
claim  for  dower,  when  he  made  this  will,  cannot  be  reasonably 
doubted,  but  the  question  is,  whether  the  devise  is  of  such  a  nature  <is  ta 
be  inconsistent  loith  the  enjoyment  of  her  doicer  by  the  widow.  In  the  con- 
sideration of  this  question,  when  the  testator  speaks  of  all  his  estates,  he  must 
be  held  to  mean  all  his  estates  subject  to  the  legal  rights  against  them,  and 
among  these  is  the  wife's  right  to  dower."  In  Harrison  v.  Harrison,  1 
Keen,  765,  the  same  able  judge  said  (p.  767):  "The  principle  applicable 
to  cases  of  this  kind  is,  that  where  a  testator  makes  a  provision  for  his 
widow  out  of  his  real  estates,  she  will  not  be  excluded  from  dower,  unless 
the  enjoyment  of  dower,  together  with  the  provision  made  by  the  will,  ap- 
pears to  be  inconsistent  with  the  intention  of  the  testator  as  it  is  to  be 
collected  from  the  language  of  the  will."  In  Holdich  v.  Holdich,  2  Young& 
&  C.  18,  23,  Knight  Bruce,  V.  C,  said:  "To  put  the  wife  to  her  election 
on  the  ground  that  her  claim  to  dower  is  inconsistent  with  the  intention 
of  the  testator  as  to  some  other  legatee  or  devisee,  there  must  be  something 
beyond  the  mere  gift  to  the  legatee  or  devisee.  Tliere  must  be  such  circum- 
stances attending  the  gift  as  that,  if  dower  be  admitted,  the  legatee  or  devisee 


§  493  EQUITY   JURISPRUDENCE.  820 

served,  as  a  conclusion  drawn  from  all  the  cases  of  au- 
thority, that  it  is  not  suflBcient  to  raise  a  case  for  an  election, 
that  an  intention  can  even  be  plainly  inferred  from  the  dis- 
positions of  the  will  for  the  widow  to  take  the  testament 
gift  in  lieu  of  her  dower;  in  order  to  put  her  to  an  eleo 

will  be  disappointed  of  the  enjoyment  of  the  property  in  the  mode  pointed 
out  by  the  testator."  In  Roadley  t.  Dixon,  3  Russ.  192,  200,  Lord  Lynd- 
hurst  said :  "  The  law  upon  questions  of  this  kind  is  very  distinctly  and 
clearly  settled.  The  widow  will  be  entitled  to  her  dower,  unless  in  the  will 
under  which  she  takes  a  benefit  there  are  provisions  absolutely  inconsistent 
with  Iter  claim  of  dower."  In  Reynolds  v.  Torin,  1  Russ.  129,  133,  Lord 
Gilford,  M.  R.,  said:  "To  exclude  the  widow  from  her  legal  right,  either 
there  must  be  an  express  declaration  to  that  effect,  or  it  must  appear  clearly 
from  the  whole  frame  of  the  will  that  it  was  the  testator's  intention  to  give 
her  some  interest  wholly  inconsistent  with  her  enjoyment  of  that  legal 
right."  The  remaining  cases  cited  above  will  show  what  dispositions  of 
a  will  the  English  courts,  in  applying  this  rule,  have  regarded  as  sufficiently 
inconsistent  with  her  claim  of  dower,  in  order  to  put  a  widow  to  an  elec- 
tion. The  general  rule  thus  established  in  England  is  fully  adopted  by 
the  decisions  in  all  the  states  where  the  common-law  dower,  or  a  legal 
right  analogous  thereto,  still  exists  not  essentially  altered  by  statute.  Adsit 
v.  Adsit,  2  Johns.  Ch.  448 ;  7  Am.  Dec.  539 ;  Smith  v.  Kinskern,  4  Johns.  Ch.  9 ; 
Swaine  v.  Ferine,  5  Johns.  Ch.  482;  9  Am.  Dec.  318;  Larrabee  v.  Van  Alstyne, 

1  Johns.  307;  3  Am.  Dec.  333;  Van  Orden  v.  Van  Orden,  10  Johns.  30;  6  Am. 
Dec.  314;  Jackson  v.  Churchill,  7  Cow.  287;  17  Am.  Dec.  514;  Wood  v.  Wood, 
5  Paige,  597,  601;  28  Am.  Dec.  451;  Fuller  v.  Yates,  8  Paige,  325;  Sandford 
V.  Jackson,  10  Paige,  266;  Havens  v.  Havens,  1  Sand.  Ch.  325,  330;  Bull  v. 
Church,  5  Hill,  206;  2  Denio,  430;  43  Am.  Dec.  754;  Sheldon  v.  Bliss,  8 
N.  Y.  31 ;  Lewis  v.  Smith,  9  N.  Y.  502;  61  Am.  Dec.  706;  Savage  v.  Burnh:im, 
17  N.  Y.  561,  577;  Tobias  v.  Ketchum,  32  N.  Y.  319,  326;  Vernon  v.  Vernon, 
53  N.  Y.  351,  362;  Lefevre  v.  Lefevre,  59  N,  Y.  435;  Leonard  v.  Steele,  4  Barb. 
20;  Lasher  v.  Lasher,  13  Barb.  106;  Mills  v.  Mills,  28  Barb.  454;  Vedder  v. 
Saxton,  46  Barb.  188;  Evans  v.  Webb,  1  Yeates,  424;  1  Am.  Dec.  308; 
Hamilton  v.  Buckwalter,  2  Yeates,  389;   1  Am.  Dec.  350;  Duncan  v.  Duncan, 

2  Yeates,  302;  Webb  v.  Evans,  1  Binn.  565,  572;  Cauffman  v.  Cauffman,  17 
Serg.  &  R.  16,  25;  Preston  v.  Jones,  9  Pa.  St.  456,  460;  Fulton  v.  Moore,  25  Pa. 
St.  468;  Cox  V.  Rogers,  77  Pa.  St.  160;  Stark  v.  Hunton,  1  N.  J.  Eq.  217,  224; 
Van  Arsdale  v.  Van  Aradale,  26  N.  J.  L.  404,  417;  Colgate  v.  Colgate,  23  N.  J. 
Eq.  372;  Perkins  v.  Little,  1  Greenl.  148;  O'Brien  v.  Elliot,  15  Me.  125;  32 
Am.  Dec.  137;  Weeks  v.  Patten,  18  Me.  42;  36  Am.  Dec.  696;  Smith  v.  Guild, 
34  Me.  443;  Brown  v.  Brown,  55  N.  H.  106;  Hamblett  v.  Hamblett,  6 
N.  H.  333;  Reed  v.  Dickerman,  12  Pick.  145,  149;  Hyde  v.  Baldwin, 
17  Pick.  303,  308;  Kempston's  Appeal,  23  Pick.  163;  Smith  v.  Smith, 
14  Gray,  532;  Ix>rd  v.  T^rd,  23  Conn.  327,  331;  Ailing  v.  Chatfield,  42 
Conn.  276;  Chapin  v.  Hill,  1  R.  I.  446;  Hall's  Case,  1  Bland,  203;  17 
Am.  Dec.  275;   ColIinB  v.  Carman,  6  Md.  503;   Wiseley  v.  Findlay,  3  Rand. 


821  CONCERNING   ELECTION.  §  493 

tion,  sucli  an  intention  on  the  part  of  the  testator  must 
be  expressed  by  means  of  testamentary  dispositions  and 
provisions  which  are  wholly  and  unmistakably  incon- 
sistent with  the  assertion  of  her  claim  to  the  dower.  Mere 
intention  of  the  testator  gathered  from  the  will  is  clearly 

361;  15  Am.  Dec.  712;  Ambler  v.  Norton,  4  Hen.  &  M.  23,  44;  Higginbotham 
V.  Cornwell,  8  Gratt.  83;  56  Am.  Dec.  130;  Dixon  v.  McCue,  14  Gratt.  540; 
Pickett  V.  Peay,  3  Brev.  545;  6  Am.  Dec.  594;  Gordon  v.  Stevens,  2  Hill  Ch. 
46 ;  27  Am.  Dec.  445 ;  Brown  v.  Caldwell,  1  Speers  Eq.  322 ;  Snelgrove  v.  Snel- 
giove,  4  Desaua.  Eq.  274,  294;  Tooke  v.  Hardeman,  7  Ga.  20;  Worthen  v. 
Pearson,  33  Ga.  385;  81  Am.  Dec.  213;  Adams  v.  Adams,  39  Ala.  274;  Ap- 
person  v.  Bolton,  29  Ark.  418;  Carroll  v,  Carroll,  20  Tex.  731,  744;  Shaw  v. 
Shaw,  2  Dana,  342;  Timberlake  v.  Parishs  Ex'r,  5  Dana,  346;  Bailey  v. 
Dimcan,  4  Mon.  256,  265,  266;  Douglas  v.  Feay,  1  W.  Va.  26;  Pemberton  v. 
Pemberton,  29  Mo.  408,  413;  Clark  v.  Griffith,  4  Iowa,  405;  Mitteer  v. 
Wiley,  34  Iowa,  214;  Herbert  v.  Wren,  7  Cranch,  370,  378.a  In  the  early 
case  of  Herbert  v.  Wren,  7  Cranch,  370,  378,  Marshall,  C.  J.,  thus  stated 
the  rule:  "  It  is  a  maxim  of  a  court  of  equity  not  to  permit  the  same  person 
to  hold  under  and  against  a  will.  If,  therefore,  it  be  manifest  from  the 
face  of  the  will  that  the  testator  did  not  intend  the  provision  it  contains 
for  his  widow  to  be  in  addition  to  dower,  but  to  be  in  lieu  of  it,  if  hia 
intention,  discovered  in  other  parts  of  the  will,  must  be  defeated  by  the 
allotment  of  dower  to  the  widow,  she  must  renounce  either  her  dower  or  the 
benefit  of  the  claims  imder  the  will.  But  if  the  two  provisions  may  stand 
well  together,  if  it  may  fairly  be  presumed  that  the  testator  intended  the 
devise  or  bequest  to  his  wife  as  additional  to  her  dower,  then  she  may  hold 
both."  The  language  of  Marshall,  C.  J.,  in  this  last  clause  of  the  extract 
is  open  to  criticism,  as  not  expressing  correctly  the  intention  which  must 
appear,  in  order  that  the  widow  may  hold  both  her  dower  and  the  tes- 
tamentary gift.  The  general  rule  was  stated  perhaps  more  accurately  by 
Denio,  J.,  in  Lewis  v.   Smith,   9   N.   Y.  502;    61   Am.  Dec.   706,  as   follows: 

(»)  See,  also,  Bennett  v.  Packer,  70  Kep.  455,  64  N.  W.  656 ;  Campbell  v. 

Conn.  357,  66  Am.  St.  Rep.   112,   39  Sankey,   114  Iowa,  69,  86  N.  W.  48; 

Atl.    739;     Thompson    v.    Betts,     74  Matter  of  Zahrt,  94  N.  Y.  605;  Asch 

Conn.   576,   51   Atl.   564,  92  Am.  St.  v.  Asch,  113  N.  Y.  232,  21  N.  E.  70; 

Rep.  235;  Potter  v.  Workey,  57  Iowa,  In  re  Gorden,  172  N.  Y.  25,  92  Am. 

66,  7  N.  W.  685,  10  N.  W.  298;  Blair  St.  Rep.  689,  64  N.  E.  753;  Durfee's 

V.  Wilson,   57  Iowa,   178,   10  N.    W.  Petition,    14    R.    I.    47;    Haszard    v. 

327;   Snyder  v.  Miller,  67  Iowa,  261,  Haszard,   19  R,  L  374,  34  Atl.   150; 

25  N.  W.  240;  Daugherty  v.  Daugh-  Bannister  v.  Bannister,  37  S.  C.  529, 

erty,   69   Iowa,   679,   29   N.   W.   778;  16  S.  E.  612;  Garrett  v.  Vaughan,  SS' 

Estate  of  Blaney,  73  Iowa,  114,  34  N.  S.  C.  516,  38  S.  E.   166;   Rutherford 

W.  708;  Howard  v.  Watson,  76  Iowa,  v.  Mayo,  76  Va.  117;  Nelson  v.  Kown- 

229,  41  N.  W.  45;  Kiefer  v.  Gillett,  dar,  79  Va.  468;  Tracey  v.  Shumate, 

120  Iowa.  107,  94  N.  W.  270;  Hunter  22  W.  Va.  474,  499;  Atkinson  v.  Sut 

V.  Hunter,  95  Iowa,  728,  58  Am.  St.  ton,  23  W.  Va.  197. 


§  494  EQUITY   JURISPRUDENCE.  822 

not  enough;  that  intention  must  have  been  shown,  or  car- 
ried into  operation,  by  totally  inconsistent  gifts  of  the  land 
subject  to  the  dower.*" 

§  494.  A  Different  Statutory  Rule  in  Certain  States. — As 
will  more  particularly  appear  in  a  subsequent  paragraph, 
the  time  and  mode  of  electing  between  her  dower  and  a 
will,  by  a  widow,  is  very  precisely  regulated  in  many  of 
the  states  by  statute.  Either  as  a  result  of  this  legislation, 
or  of  statutes  changing  the  nature  of  dower,  a  general  rule 
concerning  the  necessity  of  election  by  widows,  quite  differ- 
ent from  that  set  forth  in  the  foregoing  paragraph,  has 
been  adopted  in  some  of  the  states.  By  this  rule,  wherever 
a  testamentary  disposition  in  behalf  of  his  widow  is  con- 
tained in  the  husband's  will,  and  his  intention  that  she  is 
to  enjoy  both  this  gift  and  her  dower  does  not  affirma- 
tively and  expresslj'"  appear  on  the  face  of  the  instrument, 
she  is  required  to  elect  between  the  two.^ 

"The  courts  do  not  inquire  whether  the  testamentary  provision  is  adequate, 

■or   reasonably    proportionate   to   the   value   of    the   dower Where 

there  is  no  direct  expression  of  intention  that  the  provision  shall  be  in  lieu 
of  dower,  the  question  always  is,  whether  the  will  contains  any  provision 
inconsistent  with  the  assertion  of  a  right  to  demand  a  third  of  the  lands, 
to  be  set  out  by  metes  and  bounds.  The  devises  in  the  vnll  must  be  so  repug- 
nant  to  the  claim  of  dower  that  they  cannot  stand  together."^ 

1  In  several  of  these  states  the  common-law  dower  has  been  abolished, 
and  a  statutory  right  to  a  portion  of  her  husband's  real  estate  has  been 
given  to  the  widow  in  place  of  the  dower.  In  many  of  the  states  mentioned 
in  this  note  it  will  be  seen  that  the  new  statutory  rule  concerning  the 
effect  of  a  testamentary  provision  in  favor  of  the  widow,  and  the  consequent 
necessity  for  her  to  elect,  extend  not  only  to  her  dower,  or  to  the  portion 
of  real  estate  given  in  place  of  dower,  but  also  to  her  distributive  share 
of  her  husbands  personal  estate.  Wherever  an  election  by  the  widow  is 
required  under  the  statutes,  she  is  generally  obliged  to  make  it  in  a  formal 
manner,  by  means  of  a  written  instrument,  which  is  either  filed  with  the 
clerk  of  the  court,  or  entered  in  the  records  of  the  pending  proceedings.  I 
arrange   the    states   in   classes,    the    statutory    provision    of   all    those    which 

(b)  In  determining  whether  a  v  Shumate,  22  W.  Va.  474;  Atkin- 
tcstamentary  disposition  was  in-  son  v.  Sutton,  23  W.  Va.  197. 
tended  in  place  of  dower,  the  fact  of  (c)  The  text  is  quoted  in  Stokes 
the  inadequacy  of  the  provision,  v.  Pillow,  64  Ark.  1,  40  S.  W.  580 
which  was  known  to  the  testator,  is  (election  between  devise  and  home- 
considered  a  strong  indication  that  stead  estate), 
■rauch  was  not  the  intention:     Tracey 


823  CONCERNING   ELECTION.  §  495 

§  495.  Classes  of  Testamentary  Dispositions. —  So  many 
cases  have  arisen  upon  wills  containing  dispositions  by  the 
testator,  similar  in  their  operation,  that  the  English  and 
American  courts  have  been  enabled  to  make  a  classification 

constitute  a  class  being  substantially  the  same  in  language,  and  actually 
the  same  in  legal  effect. 

First  Class. —  In  the  states  of  this  class  any  testamentary  provision  made 
by  the  husband's  will  in  favor  of  his  wife,  whether  devise  of  land,  or  be- 
quest of  personal  property,  is  deemed  to  be  in  lieu  of  her  dower  or  statutory 
portion  given  in  place  of  dower,  and  in  many  states  of  her  share  of  the 
personal  property,  and  bars  her  right  to  her  dower,  statutory  portion,  or 
share,  unless  it  plainly  appears  on  the  face  of  the  will  that  her  husband 
intended  she  should  have  both,  or  unless  she  duly  elect  to  waive  the  tes- 
tamentary benefit.  Where  the  will  does  not  expressly  show  that  she  waa 
to  have  both,  she  must,  within  a  certain  prescribed  time,  elect  against  the 
will,  and  must,  in  a  formal  manner,  waive  or  reject  the  testamentary  pri> 
vision,  or  else  she  will  be  deemed  to  have  elected  in  favor  of  it,  and  will 
be  barred  of  her  dower,  or  statutory  portion  in  place  of  dower,  and  in  many 
states  of  her  distributive  share.  In  several  of  the  states  this  formal  renun- 
ciation of  the  will  must  be  made  within  six  months  after  probate;  in  some 
within  a  year.  I  have  indicated  the  period  in  connection  with  each  state. 
The  following  states  belong  to  this  class: — 

Alabama. —  Rev.  Code,  sees.  1928,  1929:  Extends  to  dower  and  distributive 
share;  must  elect  within  one  year  from  probate.  See  Hilliard  v.  Benford'g 
Heirs,  10  Ala.  977,  990;  McGrath  v.  McGrath,  38  Ala.  246.a. 

Illinois. —  Hurd's  Rev.  Stats.  1880,  p.  426,  sees.  10,  ll:l»  Extends  to  dower; 
election  must  be  within  one  year  after  letters  testamentary  are  issued.  See 
Haynie  v.  Dickens,  68  111.  267;  Sutherland  v.  Sutherland,  69  111.  481;  Pad- 
field  v.  Padfield,  78  111.  16;  Gauch  v.  St.  Louis,  etc.,  Ins.  Co.,  88  111.  255; 
30  Am.  Rep.  554;  Mowbry  v.  Mowbry,  64  111.  383;  Bro\vn  v.  Pitney,  39 
111.  468;  Jennings  v.  Smith,  29  111.  116. 

o 

Kansas. —  Comp.  Laws  1879,  p.  1005,  sec.  6153  :d  Extends  to  widow's  statu- 
tory portion;  election  must  be  made  within  thirty  days  after  service  of  a 
citation  issued  to  her  after  the  probate.     See  Allan  v.  Hannum,  15  Kan.  625. 

e 

(a)  Alabama. —  See  also  Crenshaw  Stephens,  158  Ind.  438,  63  N.  E.  847, 
V.  Carpenter,  69  Ala.  572,  44  Am.  for  the  terms  and  construction  of 
Rep.    539;    Sanders    v.    Wallace,    118       these  statutes. 

Ala.  418,  24  South.  354.  (d)  Kansas. —  Comp.     Laws     1885, 

(b)  Illinois. —  Rev.      Stats.      1889,       c.  117,  sec.  41. 

1893,  chap.  41,  §§  10,  11;  Warren  v.  (e)  Kentucky.— Kj.  Stats.,  §§  1404, 

Warren,  148  111.  61,  22  L,  R.  A.  393,  2130.      For   the  terms   and   construc- 

36    N.    E.    611     (inadequacy    of    pro-  tion   of  these   statutes   see   Bayes   v. 

vision  immaterial).  Howes,  24  Ky,  L.  Rep.  281,  08  S.  W. 

(c)  Indiana. —  Burns'     Rev.    Stats.  449. 
1901,   §§   2648,   2666.     See  Miller  ▼. 


§  495  EQUITY   JURISPRUDENCE.  824- 

of  wills,  and  to  establish  a  xmmber  of  special  rules  declar- 
ing what  particular  kind  of  testamentary  disposition  is 
and  what  is  not  inconsistent  with  a  claim  of  dower,  so  that 
the  widow  shall  or  shall  not  be  put  to  an  election  thereby. 

Maine. —  Rev.  Stats.  1871,  p.  757,  c.  103,  sec.  10:  Extends  to  dower; 
election  must  be  within  six  months  after  the  probate.  See  Allen  v.  Pray,  12' 
Me.  138,  142;  Hastings  v.  Clifford,  32  Me.  132;  Dow  v.  Dow,  36  Me.  211. 

Massachusetts. —  Rev.  Stats.,  c.  60,  sec.  11;  Gen.  Stats.,  c.  92,  sec.  24; 
Stats.  1854,  c.  428;  Stats.  1861,  c.  164:*  Extends  to  dower;  election  must 
be  made  within  six  months  after  probate.  See  Atherton  v.  Corliss,  101 
Mass.  40,  44;  Reed  v.  Dickerman,  12  Pick.  146;  Pratt  v.  Felton,  4  Cush. 
174;  Delay  v.  Vinal,  1  Met.  57;  Adams  v.  Adams,  5  Met.  277. 

Maryland. —  Rev.  Code  1878,  p.  475,  sees.  227-230  :K  Extends  to  dower  and 
to  distributive  share;  election  must  be  made  within  sLx  months  after  letter* 
testamentary  are  issued.  See  Knighton  v.  Young,  22  Md.  359;  Hilleary  v. 
Hilleary's  Lessee,  26  Md.  274;  Gough  v.  Manning,  20  Md.  347,  366;  Lynn 
V.  Gephart,  27  Md.  547;  Hinckley  v.  House  of  Refuge,  40  Md.  461;  Pindell 
v.  Pindell,  40  Md.  537, 

Michigan. —  2  Comp.  Laws  1871,  p.  1362,  sees.  4286,  4287 :»»  Extends  to 
dower;  widow  is  deemed  to  have  elected  in  favor  of  the  will,  unless  within 
one  year  after  her  husband's  death  she  begin  proceedings  to  recover  her 
dower. 

Minnesota. —  1  Bissell's  Stats,  at  Large,  p.  628,  sees.  152,  153:*  Provisions 
same  as  in  Michigan;  but  in  1875  dower  was  abolished,  and  these  provisions^ 
repealed. 

Mississippi. —  Rev.  Code  1871,  p.  254,  sees.  1286,  1287  :J  Extends  to  dower 
and  to  widow's  share  of  personal  estate;  election  must  be  made  within  six 
months  after  probate. 

W     Massach^isetts. —  Pub.      Stats.,  sec.  18.      By  the  Laws  of  1875,  c.  40, 

c.   127,  sec.  20.     See,  also,  Matthews  abolishing    dower,    an    estate    of    in- 

V.  Matthews,  141  Mass.  511,  6  N.  E.  heritance   in   lieu   of   dower   is   given 

776.     The  provision  that  the  widow  to  the  widow,  and  the  rules  governing 

shall  not  be  entitled  to  dower  in  ad-  election  between  this  statutory  estate 

dition  to  the  provisions  of  her  hus-  and   provisions   made   for   the   widow 

band's  will   is  held  not  to  apply  to  by  the  will  of  her  husband  are  the 

lands  of  a  resident  of  Massachusetts  same  as  the  general  rules  of  equity 

situated  in  a  foreign  state:      Staigg  governing  election  in  cases  of  dower, 

v.  Atkinson,  144  Mass.  567,  12  N.  E.  Unless  the  contrary  appears  from  the 

354.  will,     the     presumption     is,     that    a 

(K)  Maryland. — Code  1888,  art.  93,  legacy  is  intended  as  a  bounty,  and 

sees.  291-294.  not  as  a  satisfaction  of  the  statutory 

(h)       Michigan. —  Howell's      Stats.  interest  of  the  wife:     Estate  of  Got- 

1882,  sees.  5750,  5751;    Comp.  Laws,  zian,  34  Minn.   159,  57  Am.  Rep.  43, 

§  9004;  Stearns  v.  Perrin,  130  Mich.  24  N.  W.  920. 
450,  90  N.  W.  297.  (i)  Mississippi. —  Code    1880,    sees, 

(•)    Minnesota.— Rev.    Stats.    1851,  1172,    1174. 
c.  49,  sec.  18;  Gen.  Stats.  1800,  c.  48, 


825  CONCERNING   ELECTION.  §  496 

The  most  common  and  important  of  these  testamentary 
forms,  and  of  the  special  rules  concerning  them,  will  now 
be  stated. 

§  496.  Express  Declaration. —  If  the  testator,  in  express 
terms,  declares  that  any  gift  which  he  makes  to  his  widow, 

Nebraska. —  Gen.  Stats.  1873,  p.  278,  sees.  17,  18:  Extends  to  dower; 
election  is  deemed  to  be  made  in  favor  of  the  will,  unless  within  one  year 
after  her  husband's  death  the  widow  begins  proceedings  to  recover  her  dower.lt 

North  Carolina. —  Battle's  Rev.  1873,  p.  840,  sec.  6:1  Extends  to  dower; 
election  must  be  made  within  six  months  after  probate.  See  Craven  v. 
Craven,  2  Dev.  Eq.  338;  Bray  v.  Lamb,  2  Dev.  Eq.  372;  25  Am.  Dec.  718. 

Ohio. —  2  Rev.  Stats.  1879,  p.  1433,  sec.  5963:  Extends  to  dower;  election 
must  be  made  within  one  year  after  service  of  a  citation  upon  the  widow 
for  that  purpose.  See  Stilley  v.  Folger,  14  Ohio,  610,  646;  Luigart  v.  Ripley, 
19  Ohio  St.  24;  Baxter  v.  Boyer,  19  Ohio  St.  490;  Bowen  v.  Bowen,  34  Ohio 
St.  164;  Thompson  v.  Hoop,  6  Ohio  St.  480;  Stockton  v.  Wooley,  20  Ohio 
St.  184;  Davis  v.  Davis,  11  Ohio  St.  386;  Jennings  v.  Jennings,  21  Ohio  St.  56. 

Oregon. —  Gen.  Laws  1872,  p.  586,  §§  18,  19:m  Extends  to  dower;  widow 
is  deemed  to  have  elected  in  favor  of  the  will,  unless  within  one  year  after 
the  death  of  her  husband  she  begins  proceedings  to  recover  her  dower. 

Pennsylvania. —  Brightly's  Purdon's  Dig.,  p.  362,  sees.  4-6 :»  Extends  to 
dower;  after  one  year  from  the  husband's  death  a  citation  may  be  issued 
to  the  widow,  and  she  must  then  elect.  See  Anderson's  Appeal,  36  Pa.  St. 
476;  Melizet's  Appeal,  17  Pa.  St.  449;  55  Am.  Dec.  573;  CaiifFman  v.  Cauff- 
man,  17  Serg.  &  R.  16;  Heron  v.  Hoffner,  3  Rawle,  393;  Reed  v.  Reed,  9 
Watts,  263;  Leinaweaver  v.  Stoever,  1  Watts  &  S.  160;  Borland  v.  Nichola, 
12  Pa.  St.  38;  51  Am.  Dec.  576. 

Ten7iessee. —  Code  1871,  vol.  2,  p.  1077,  sec.  2404.  Extends  to  dower;  election 
must  be  made  within  one  year  after  probate.  See  Reid  v.  Campbell,  Meigs, 
378,  388;  Malone  v.  Majors,  8  Humph.  577,  579;  McClung  v.  Sneed,  3  Head, 
218,  223;  Waddle  v.  Terry,  4  Cold.  61,  54;  Demoss  v.  Demoss,  7  Cold.  256,  258. 

Wisconsin. —  2  Taylor's  Stats.  1871,  p.  1160,  sees.  18,  19 :o  Extends  to 
dower;  widow  is  deemed  to  have  elected  in  favor  of  the  will,  imless  within 
one  year  after  probate  she  begins  proceedings  to  recover  her  dower. 

(U)   Nebraska. —  Dower    Abolished,  provision  for  the  widow,   she  is  ex- 

1889.  eluded  from  any  share  in  either  the 

(1)   North     Carolina. —  Code     1883,  real  or  personal  estate  of  the  testator 

sec.  2108.  left   undisposed   of   by   the   will,   by 

(m)   Oregon. —  Hill's     Laws     1887,  virtue  of  the  right  of  dower  or  under 

sees.  2971,  2972.  the    statute    of    distributions,    unless 

(n)  Pennsylvania. —  Brightly's  Pur-  she  duly  renoimces   the   provision  so 

don's  Dig.,  ed.  of  1883,  p.  632.  made  for  her  in  the  will:     Hardy  v. 

(o)     Wisconsm.— Laws     of     1877,  Scales,  54  Wis.  452,   11   N.   W.  590. 

c.     106;     Sanborn     and     Berryman's  In  Wilber  v.  Wilber,  52  Wis.  298,  9 

Stats.    1889,    sec.    2172.      Under   the  N.  W.  163,  it  is  held  that  the  statu- 

laws  of  1877  (c.  106),  if  a  will  makes  tory  right  of  election  cannot  be  taken 


§  496  EQUITY   JURISPRUDENCE.  826 

whether  legacy  or  devise,  shall  be  in  lieu  of  her  dower,  she 
is,  of  course,  required  to  elect  between  the  will  and  her 
dower  right,  both  at  law  and  in  equity;  and  the  value  of 
the  gift  in  proportion  to  that  of  her  dower,  whether  large 

Second  Class. —  In  all  the  states  of  this  class,  any  devise  of  land  by  the 
husband  to  his  widow  is  deemed  to  be  in  lieu  of  dower,  and  puts  her  to  an 
election,  unless  the  will  expressly  shows  his  intention  that  she  shall  receive 
both.  A  bequest  of  personal  property  is  not  so  deemed,  and  does  not  put  the 
widow  to  an  election,  unless  it  is  expressly  given  in  lieu  of  her  dower,  or 
unless  the  testator's  intention  that  it  shall  be  instead  of  dower  is  plainly 
manifested  from  the  provisions  of  the  will.  When  thus  required  to  elect,  the 
widow's  election  must  be  made  in  a  formal  manner,  by  a  writing,  and  within 
certain  prescribed  times.  The  prescribed  periods  of  time  within  which  the 
election  must  be  made  are  mentioned  in  connection  with  each  state  of  the 
class.     The  following  states  compose  this  class: — 

Arkansas. —  Gantt's  Dig.,  sees.  2233,  2235,  2236  :P  Where  a  devise  is  simply 
given  to  the  widow,  she  must  elect  against  the  will  within  eighteen  mouths 
after  her  husband's  death,  or  else  she  is  regarded  as  having  elected  in  favor 
of  the  will.  Also,  in  Gantt's  Dig.,  sec.  2223, Q  when  any  provision  is  given  to 
her  expressly  in  lieu  of  her  dower,  she  must  elect  against  the  will  within  one 
year  after  her  husband's  death,  by  commencing  proceedings  to  recover  her 
dower. 

Delaware. —  Eev.  Code  1852-74,  p.  534,  sees.  5,  6,  7 :  Widow  must  elect 
against  the  will  within  thirty  days  after  service  of  a  citation  on  her.  See 
Chandler  v.  Woodward,  3  Harr.   (Del.)   428. 

Georgia. —  Code  1873,  p.  305,  sees.  1764,  1765:  Widow  must  elect  when  land 
is  devised  to  her,  but  the  time  of  making  the  election  and  its  mode  are  not 
prescribed.  See  Tooke  v.  Hardeman,  7  Ga.  20;  Raines  v.  Corbin,  24  Ga.  185, 
Worthen  v.  Pearson,  33  Ga.  385;  81  Am.  Dec.  213;  Clayton  v.  Akin,  38  Ga. 
320;  95  Am.  Dec.  393;  Gibbon  v.  Gibbon,  40  Ga.  562.r 

Missouri. —  1  Wagner's  Stats.  1870,  p.  541,  sees,  15,  16:  Widow  must  elect  in 
writing  within  one  year  after  probate  to  waive  the  devise,  or  she  is  deemed 

from  the  widow  either  by  the  will,  or  dower    can    be    defeated,    the    widow 

by  a  deed  of  release  executed  by  her  must   do   some   act   showing   her   ac- 

to  her  husband  during  coverture.   See,  ceptance  of  the  provision  of  the  will, 

also,  Leach  v.  Leach,  65  Wis.  291,  26  As  to  what  will  amount  to  such  an 

N.  W.  754;  Melms  v.  Pabst  Brewing  election,  see  Churchill  v.  Bee,  66  Ga. 

Co.,  93  Wis.  140,  66  N.  W.  244;  Vil-  621;  Johnston  v.  Duncan,  67  Ga.  61. 

ley  V.  Lewis,  113  Wis.  618,  88  N.  W.  The  wife  cannot  be  put  to  her  elec- 

1021.  tion  until  after  the  death  of  her  hus- 

(P)  Arkansas. — Dig.  of  Stats.  1884,  band.     Consequently,  a  deed  from  the 

sees.  2594,  259G,  2597.  husband  to  his  wife,  accepted  by  her 

(»i)  Dig.  of  Stats.  1884,  sec.  2284.  at  the  time,  in  lieu  of  dower,  will  not 

(«•)   Georgia. —  In   Forester  v.  Wat-  have  that  effect,  unless  ratified  after 

ford,    67    Ga.    508,    and    Aldridge    v.  the  husband's  death:     Butts  v.  Trice, 

Aldridge,   79  Ga.  71,  3  S.  E.  619,  it  69  Ga.  74. 
was    held    that    before    the    right    to 


•-827  CONCERNING   ELECTION.  §  497 

or  small,  is  entirely  immaterial.^ '  In  all  the  subsequent 
<ilasses  the  will  contains  no  such  express  declaration. 

§  497.  Devise  of  a  Part  to  the  Widow  and  of  the  Rest  to 
Others —  Where  a  testator  simply  devises  to  his  widow  a 
part  of  the  lands  which  are  subject  to  dower,  with  or 
without  any  additional  pecuniary  provision  by  way  of 
legacy,  and  gives  the  rest  of  his  real  estate  to  others  to  be 
enjoyed  by  such  devisees  for  their  own  benefit, —  that  is, 
not  to  trustees  upon  trust  to  sell  such  residue, —  it  is  well 
settled,  both  in  England  and  in  this  country,  that  the  dis- 
position made  by  the  testator  is  not  inconsistent  with  his 
widow's  claim  for  dower,  and  no  necessity  for  an  elec- 
tion is  created.^    Where  the  devise  to  a  third  person,  after 

to  have  elected  in  favor  of  the  will.  See  Pemberton  v.  Pemberton,  29  Mo.  408; 
Brant  v.  Brant,  40  Mo.  266. 

2Veic  Jersey. —  Rev.  Stats.  1877,  p.  322,  sec.  16:  Any  devise  is  a  bar  of  dower, 
unless  the  widow  elects  to  waive  it  within  six  months  after  probate.  See 
Stark  v.  Hunton,  1  N.  J.  Eq.  216;  Norris  v.  Clark,  10  N.  J.  Eq.  51;  Adamson 
V.  Ayres,  5  N.  J.  Eq.  349;  Colgate  v.  Colgate,  23  N.  J.  Eq.  372;  Morgan  v. 
Titus,  3  N.  J.  Eq.  201;  English  v.  English,  3  N.  J.  Eq.  504;  29  Am.  Dec.  730; 
White  v.  White,  16  N.  J.  L.  202;  31  Am.  Dec.  232;  Thompson  v.  Egbert,  17 
N.  J.  L.  459 ;  Van  Arsdale  v.  Van  Arsdale,  26  N.  J.  L.   404.» 

§  496,  1  See  many  of  the  cases  cited  in  the  preceding  notes,  under  §  493. 

§  497,  1  Lawrence  v.  Lawrence,  2  Vern.  365;  2  Freem.  234,  235;  3  Brown  Pari. 
C,  Tomlins's  ed.,  483;  Lemon  v.  Lemon,  8  Vin.  Abr.,  p.  366,  pi.  45;  French  v. 
Davies,  2  Ves.  572;  Strahan  v.  Sutton,  3  Ves.  249;  Lord  Dorchester  v.  Earl 
of  Effingham,  Coop.  319;  Brown  v.  Parry,  2  Dick.  685;  Incledon  v.  Northcote, 
3  Atk.  430,  436;  Gibson  v.  Gibson,  1  Drew.  42;  Lawrence  v.  Lawrence,  2  Vern. 
365,  2  Freem.  234,  235,  3  Brown  Pari.  C,  Tomlins's  ed.,  483,  is  the  leading 
case.     The  testator  devised  part  of  his   real   estate  to  his  wife  during  her 

(■)  Hew  Jersey. —  See  also  Stewart  and  of  all  claims  the  widow  may  have 

V.  Stewart,  31  N.  J.  Eq.  398;  Cooper  against  the   testator's   estate   as    hia 

T.  Cooper,  56   N.  J.   Eq.  48,  38  Atl.  widow,  it  is  held  that  the  declaration 

198;    Hill   V.   Hill,   62  N.   J.  L.   442,  was  not  simply  for  the  benefit  of  the 

41  Atl.  943.     In  Griggs  v.  Veghte,  47  other  devisees  and  legatees,  but  was 

N.  J.  Eq.  179,  it  is  held  that  an  in-  in    ease    of    the    entire    estate,    and 

tention  to  make  an  equal  division  of  barred    the    widow    from    any    other 

the    testator's    estate,    not    otherwise  share   thereof,   and   consequently   she 

disposed    of,    between    the    wife    and  was  not  entitled  to  share  under  the 

other     beneficiaries     is     inconsistent  statute   of   distributions   in   a   lapsed 

with  her  taking  dower.  legacy:    In  re  Bullard,  96  N.  Y.  499, 

(a)  Where  the  provision  of  the  48  Am.  Rep.  646,  disapproving  Pick- 
will  expressly  states  that  it  shall  be  ering  v.  Stanford,  2  Ves.  272,  581,  3 
accepted  and  received  in  lieu  of  dower,  Ves.  332,  492. 


§  497  EQUITY   JURISPRUDENCE.  828^ 

a  provision  made  for  the  widow,  is  specific  of  a  certain 
tract  of  land  specifically  defined  and  identified,  a  variation 
from  this  rule  has  been  suggested  and  even  adopted  in 
some  American  cases.  Under  ordinary  circumstances  the 
specific  nature  of  the  devise  does  not  prevent  the  opera- 
tion of  the  rule;  but  when  the  specific  devise  is  for  the 
benefit  of  one  whom  the  testator  is  bound  to  support,  the 
rule  may  not  apply .^ 

widowhood,  and  also  gave  her  several  legacies,  both  specific  and  general.  The 
residue  of  his  real  estate  was  devised  to  trustees,  in  trust,  for  specified  per- 
sons. Lord  Somers  held  that  the  widow  was  bound  to  elect,  but  his  decision, 
was  reversed  by  Lord  Keeper  Wright,  and  that  decree  was  confirmed  by  Lord 
Chancellor  Cowper  and  the  house  of  lords,  and  it  was  settled  that  she  could 
claim  both  her  dower  and  the  benefits  given  by  the  will.  The  American  de- 
cisions are  equally  unanimous  and  strong:  Lefevre  v.  Lefevre,  59  N.  Y.  435; 
Leonard  v.  Steele,  4  Barb.  20;  Bull  v.  Church,  5  Hill,  207;  2  Denio,  430;  43 
Am.  Dec.  754;  Lewis  v.  Smith,  9  N.  Y,  502;  61  Am.  Dec.  706;  Mills  v.  Mills, 
28  Barb.  454;  Jackson  v.  Churchill,  7  Cow.  287;  17  Am.  Dec.  514;  Havens  v. 
Havens,  1  Sand.  Ch.  325,  329;  Evans  v.  Webb,  1  Yeates,  424;  1  Am.  Dec.  308; 
Pickett  V.  Peay,  3  Brev.  545;  6  Am.  Dec.  594;  Wiseley  v.  Findlay,  3  Rand. 
361;  15  Am.  Dec.  712;  Brown  v.  Coldwell,  1  Speers  Eq.  322,  325;  Brown  v. 
Bro^\'n,  55  N.  H.  106;  but  see,  per  contra.  Ailing  v.  Chatfield,  42  Conn.  276; 
Apperson  v.  Bolton,  29  Ark.  418.  In  Lefevre  v.  Lefevre,  59  N.  Y.  435,  the 
testator  gave  one  third  of  his  estate,  real  and  personal,  to  his  widow,  one  third 
to  a  charitable  society,  then  certain  legacies,  and  the  residue  to  his  Avidow, 
to  be  disposed  of,  as  she  saw  fit,  for  charitable  purposes.  She  was  not  put  to 
an  election.  In  Leonard  v.  Steele,  4  Barb.  20,  a  husband  died  intestate,  leav- 
ing his  widow  and  a  son.  The  son,  dying,  devised  to  his  mother  part  of  tho 
real  estate  which  thus  descended  to  him,  and  the  rest  to  others.  The  widow 
was  held  entitled  to  dower  in  all  the  real  estate  of  her  husband,  and  also  ta 
the  land  devised  to  her  in  fee  by  her  son.  In  Mills  v.  Mills,  28  Barb.  454,  the 
testator  directed  that  one  third  of  his  estate  should  be  set  apart  and  invested 
for  the  use  of  his  widow  during  her  life,  and  on  her  death  should  be  divided 
among  his  children;  the  residue  to  be  divided  among  his  children.  The  widow 
was  held  entitled  to  her  dower  in  addition  to  the  testamentary  gift.  In 
Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514,  the  testator  devised  to  his 
widow  his  dwelling-house  and  part  of  his  garden,  and  gave  her  legacies.  He 
devised  his  farm  to  his  sons.  The  widow  was  held  entitled  to  dower  in  th<» 
farm,  as  well  as  to  the  devise  and  legacy  given  by  the  will.  Tliese  example* 
amply  illustrate  the  rule  as  stated  in  the  text. 

2  Under  ordinary  circumstances,  a  specific  devise  to  a  third  person  certainly 
makes  no  difference  with  the  operation  of  the  rule  stated  in  the  text,  that  no 
case  for  an  election  is  raised:  Strahan  v.  Sutton,  3  Ves.  249;  Jackson  v. 
Churcliill,  7  Cow.  287,  17  Am.  Dec.  514;  Kennedy  v.  Nedrow,  1  Dal).  415,  418. 
But  if  the  testator,  after  giving  a  portion  of  his  property  to  his  widow,  makes 
a  specific  devise  to  a  person  whom  he  is  bound  to  support  or  maintain, —  as, 
for  example,  to  his  infant  child  who  is  otherwise  unprovided  for,  and  tho  devise 


829  CONCERNING    ELECTION.  §  498 

§  498.  Devise  to  the  Widow  for  Life. — As  a  particular  in- 
■stance  of  the  rule  stated  in  the  preceding  paragraph,  a  de- 
vise to  the  widow  of  a  certain  portion  of  the  real  and  per- 
sonal estate,  or  either,  for  her  life,  and  a  devise  of  the  rest 
of  the  lands  to  third  persons,  clearly  does  not  raise  a  case 
for  an  election  between  the  testamentary  gift  and  dower 
m  the  residue}  A  devise  of  a  certain  portion  of  the  tes- 
tator's lands,  or  of  all  his  lands,  to  his  widow  for  her  life 
or  during  widowhood,  presents  another  question:  whether 
such  a  disposition  is  inconsistent  with  her  claim  of  dower 
in  the  lands  thus  devised  to  her  for  life,  or  whether  she  can 
"both  accept  the  testamentary  estate  and  also  assert,  if 
needful,  her  dower  right  therein.  Upon  this  question  there 
is  a  direct  conflict  among  the  American  decisions.  Accord- 
ing to  one  class  of  cases,  this  form  of  gift  is  completely 
governed  by  the  rule  stated  in  the  last  preceding  para- 
graph ;  no  inconsistency  exists,  the  widow  is  not  obliged  to 
elect,  but  may  take  the  life  interest  given  by  the  will,  and 
also  claim  her  dower  in  the  same  lands.^    Another  group 

is  not  more  than  enough  for  its  support, —  it  has  been  said  that  such  a  dis- 
position is  inconsistent  witli  the  widow's  claim  of  dower  in  the  land  so  speci- 
fically bestowed.  See  Herbert  v.  Wren,  7  Cranch,  370,  378,  per  Marshall, 
C.  J.;  Ailing  v.  Chatfield,  42  Conn.  276. 

1  Bull  V.  Church,  5  Hill,  207 ;  2  Denio,  430 ;  43  Am.  Dec.  754 ;  Lewis  v.  Smith, 
9  N.  Y.  502;  61  Am.  Dec.  706;  Mills  v.  Mills,  28  Barb.  454;  Sandford  v. 
Jackson,  10  Paige,  266;  Jackson  v.  Churchill,  7  Cow.  287;  17  Am.  Dec.  514; 
Havens  v.  Havens,  1  Sand.  Ch.  325. 

2  Bull  V.  Church,  5  Hill,  207 ;  2  Denio,  430 ;  43  Am.  Dec.  754 ;  Sandford  v. 
Jackson,  10  Paige,  206;  Lewis  v.  Smith,  9  N.  Y.  502;  61  Am.  Dec.  706;  Mills 
-v.  Mills,  28  Barb.  454;  Mitteer  v.  Wiley,  34  Iowa,  214.a  The  courts  of  New 
York  have  adopted  this  construction  of  the  rule  in  the  most  positive  manner. 
In  Bull  V.  Church,  5  Hill,  207,  2  Denio,  430,  43  Am.  Dec.  754,  the  testator 
gave  all  his  property,  real  and  personal,  to  his  wife  during  widowliood,  and 
then  to  his  children.  She  enjoyed  the  provision  made  by  the  will  for  a  while, 
and  then  married  a  second  time.     She  was  held  entitled  to  dower  in  all  the 

(«)  See,  also.  Hunter  v.  Hunter,  95  Iowa,  535,  63  Am.  St.  Rep.  477,  71 

Iowa,  728,   58  Am.   St.  Rep.  455,  64  N.   W.   424;    Estate   of   Proctor,    103 

N.   W.   656;    Howard  v.   Watson,   76  Iowa,  232,  72  N.  W.  516.     The  rule 

Iowa,  229,  41  N.  W.  45;  Bare  v.  Bare,  as  to  a  devise  of  a  life  estate  in  all 

91  Iowa,   143,  59  N.  W.  20;   Watson  of  the  property  has  been  changed,  in 

V.   Watson,  98   Iowa,   132,   67   N.  W.  Iowa,  by  statute:      Percifield  v.  Au- 

53;    Sutherland    v.    Sutherland,    102  mick,  116  Iowa,  383,  89  N.  W.  1101. 


§  498  EQUITY    JURISPRUDENCE.  830 

of  cases  rejects  this  view,  holds  that  the  life  estate  under 
the  will  and  the  dower  ri^ht  in  the  same  lands  are  neces- 
sarily inconsistent,  and  therefore  that  the  widow  must 
elect  between  the  two.  Her  election  in  favor  of  the  will  by 
accepting  its  provision,  according  to  this  construction,  de- 
feats any  subsequent  claim  for  dower  in  the  lands  devised.* 

lands,  as  her  interest  under  the  will  had  ended.  In  Lewis  v.  Smith,  9  N.  Y. 
502,  61  Am.  Dec.  700,  the  testator  gave  his  wife  the  use  of  all  his  estate,  real 
and  personal,  during  lier  life,  and  empowered  his  executor  to  sell  the  real 
estate,  and  pay  t}\e  proceeds  to  his  wife  for  her  enjoyment  during  life.  The 
acceptance  of  this  provision  was  held  not  inconsistent  with  her  enforcement 
of  her  dower  right.  In  Sandford  v.  Jackson,  10  Paige,  266,  testator  devised  all 
his  property,  real  and  personal,  to  his  wife  and  to  two  others,  to  be  held  for 
her  use  as  long  as  she  should  remain  his  widow,  and  until  his  youngest  child 
should  become  of  age,  and  then  a  division  was  to  be  made.  She  enjoyed  the 
provision  made  by  the  will  for  a  while,  and  then  married.  Held,  that  no  cas& 
for  an  election  had  arisen,  and  she  was  entitled  to  dower  in  all  her  husband's 
lands.l* 

3  Hamilton  v.  Buckwalter,  2  Yeates,  389,  392;  1  Am.  Dec.  350;  Stark  v. 
Hunton,  I  N.  J.  Eq.  217,  224,  225;  Smith  v.  Bone,  7  Bush,  367;  Wilson  v. 
Hayne,  Cheves  Eq.  37,  40;  Caston  v.  Caston,  2  Rich.  Eq.  1;  Cunningham  v. 
Shannon,  4  Rich.  Eq.  135.  Some  of  these  cases  seem  to  have  turned,  in  part 
at  least,  upon  local  statutes.  Laying  out  of  view  the  effect  of  any  statutes,. 
in  my  opinion  the  first-mentioned  series  of  cases  is  based  upon  the  general 
principle  as  settled  by  the  courts,  rather  than  the  second  group.  There  does- 
not  seem  to  be,  in  accordance  with  that  principle,  any  necessary  inconsistency 
between  such  a  devise  to  the  widow  and  her  claim  of  dower  in  the  same  lands, 
which  would,  of  course,  only  be  made  where  the  testamentary  gift  had  failed. 
It  is  clear  that  there  is  no  such  inconsistency  between  her  claim  of  dower  and 
a  devise  of  lands  to  third  persons,  either  for  their  lives  or  in  fee;  that  is,  the 
gift  itself,  for  life  or  in  fee,  does  not  create  the  antagonism  required  by  the 
rule.  It  is  said  that  a  life  estate  in  lands  directly  conferred  by  the  will  pre- 
cludes the  notion  of  another  legal  life  estate  in  the  same  lands  held  by  the 
same  person.  It  may  be  conceded  that  at  law  two  such  estates  in  the  same- 
lands  cannot  exist  at  tlie  same  time  vested  in  the  same  person.     In  equity, 

(l>)   In   Estate  of  Zahrt,  94   N.  Y.  159,  57  Am.  Rep.  43,  24  N.  W.  920^ 

605,  the  testator  devised  to  his  wife  where  the  testamentary  disposition  to 

during   her   life   "the   rents,   income,  the  widow  was  practically  the  same 

interest,   use,   and   occupation    of   all  as  her  statutory  fee-simple  "  dower," 

his  estate,"  upon  condition  that  she  it  was  hefd  that  she  was  put  to  an 

keep  the  buildings  and  personal  prop-  election.      The     cases    chiefly    relied 

erty   insured,   pay   all    taxes   and   as-  upon  were  from  states  enumerated  in 

Bessnients,    and    keep    the    estate    in  §  494,  ante,  where  the  presumption  ia 

good   repair.     This   requirement   wa»  in  favor  of  an  election;  the  reasoning 

held     to    be     inconsistent     with     her  of  the   court,  if  not  its  actual   deci- 

dowor  right,  and  put  lier  to  lior  elec-  sion,  appears  to  proceed  upon  a  rais- 

tion.     In  Estate  of  Ciot/iau,  34  AMinn.  apprelicnsion  of  the  true  principle. 


831  CONCERNING   ELECTION.  §  499 

The  conclusion  reached  by  the  former  series  of  decisions 
seems  to  be  in  agreement  with  the  settled  doctrines  of 
equity  jurisprudence. 

§  499.  Devise  in  Trust  to  Sell,  or  with  a  Power  of  Sale. — 
It  is  also  a  settled  rule,  both  in  England  and  in  the  Ameri- 
can states,  where  statutes  have  not  interfered,  that,  after  a 
legacy,  annuity,  or  other  pro\dsion  made  for  the  wife,  a 
devise  of  lands  which  are  subject  to  dower,  or  of  all  the 
testator's  lands,  to  trustees,  on  trust,  to  sell,  or  with  power 
given  to  the  executors  to  sell,  for  any  purpose,  is  not  in- 
consistent with  the  widow's  claim  of  dower  in  the  lands 
so  devised,  and  therefore  no  necessity  for  an  election  by 
her  is  created.  The  will,  in  such  case,  is  to  be  interpreted 
as  though  it  had  expressed  the  intention  for  the  lands  to  be 
sold  subject  to  the  widow's  dower.  This  conclusion  is  the 
same,  even  although  the  will  directs  that  an  interest  in 
some  part  of  the  proceeds  of  the  sale  should  be  given  or 
secured  to  the  widow.^    Some  special  provision  of  the  will, 

however,  this  legal  rule  does  not  prevail.  Equity  admits  the  possibility  of 
two  estates  co-existing  in  the  same  person,  and  will  always  keep  both  the 
simultaneous  estates  alive  whenever  such  a  result  is  necessary  to  protect  the 
equitable  interests  and  rights  of  the  party. 

1  French  v.  Davies,  2  Ves.  572;  Ellis  v.  Lewis,  3  Hare,  310;  Dowson  v.  Bell, 
1  Keen,  761;  Gibson  v.  Gibson,  1  Drew.  42,  57;  Bending  v.  Bending,  3  Kay  & 
J.  257.  In  Ellis  v.  Lewis,  3  Hare,  310,  the  testator  devised  all  his  real  estate 
to  a  trustee,  upon  trust,  to  sell  and  to  convey  the  same  to  purchasers,  and  to 
hold  the  proceeds,  together  with  the  residue  of  his  personal  estate,  upon  trust, 
to  pay  one  half  of  the  interest  and  income  thereof  to  his  wife  during  her  widow- 
hood, and  the  other  half  (and  the  whole  after  his  widow's  death  or  marriage) 
to  his  sister  for  her  life,  and  finally,  to  pay  the  principal  of  such  fimd  to  the 
children  of  the  testator's  said  sister.  Wigram,  V.  C,  decided  that  no  case  of 
election  arose;  that  the  widow  was  entitled  to  the  benefit  given  by  the  will, 
and  also  to  her  dower  in  all  the  lands.  He  laid  down  the  rule  as  follows: 
"  I  take  the  law  to  be  clearly  settled  at  this  day  that  a  devise  of  lands  eo 
nomine,  upon  trust,  for  sale,  or  a  devise  of  lands  eo  nomine  to  a  devisee  bene- 
ficially, does  not,  per  se,  express  any  intention  to  devise  the  lands  otherwise 
than  subject  to  their  legal  incidents,  that  of  dower  included.  There  must  be 
something  more  in  the  will,  something  inconsistent  with  the  enjoyment  by 
the  widow  of  her  dower,  by  metes  and  bounds,  or  the  devise,  standing  alone, 
will  be  construed  as  I  have  stated.  [Authorities  are  here  referred  to.]  If 
that  be  so,  it  is  impossible,  in  the  case  of  a  devise  of  lands  upon  trust 
for  sale,  that  any  direction  for  the  application  of  the  proceeds  of  such 
sale   can  ati'ect   the   case.     The   devise   is    of   land   subject    to   dower.     The 


§  499  EQUITY   JXJEISPEUDENCB.  832 

however,  in  addition  to  tlie  mere  trust,  or  power  to  sell, 
and  to  the  direction  for  distributing  the  proceeds,  may  cre- 
ate the  inconsistency  which  prevents  this  rule  from  apply- 
ing, and  requires  an  election  by  the  widow.^  ^ 

trust  to  3ell  is  a  trust  to  sell  subject  to  dower;  and  the  proceeds  of  the 
sale  will  represent  the  gross  value  of  the  estate,  minus  the  value  of  the 
■dower.  Whatever,  direction,  therefore,  for  the  mere  distribution  of  the 
proceeds  the  will  may  contain,  that  direction  must  leave  the  widow's 
right  to  dower  untouched I  found  myself  on  these  two  proposi- 
tions: 1.  That  a  devise  of  land  upon  trusts  for  sale  does  not,  per  se, 
import  an  intention  to  pass  the  land  otherwise  than  subject  to  the  legal  inci- 
dent of  dower;  and  2.  That  the  direction  to  divide  the  proceeds  of  the  sale 
cannot  decide  what  the  subject  of  sale  is;  and  there  is  no  circumstance  affect- 
ing the  proposition  in  its  application  to  the  present  case."  The  American 
cases  adopt  the  same  rule,  and  upon  the  same  course  of  reasoning:  Adsit  v. 
Adsit,  2  Johns.  Ch.  448;  7  Am.  Dec.  539;  Bull  v.  Church,  5  Hill,  207;  2  Denio, 
430;  43  Am.  Dec,  754;  Fuller  v.  Yates,  8  Paige,  325;  Wood  v.  Wood,  5  Paige, 
601;  28  Am.  Dec.  451;  Lewis  v.  Smith,  9  N.  Y.  502;  61  Am.  Dec.  706;  Whilden 
V.  Whilden,  Riley  Ch.  205 ;  Hall  v.  Hall,  8  Rich.  407 ;  64  Am.  Dec.  758 ;  Gordon 
V.  Stevens,  2  Hill  Ch.  46;  27  Am.  Dec.  445;  Timberlake  v.  Parish's  Ex'r,  5 
Dana,  345;  Kinsey  v.  Woodward,  3  Harr.   (Del.)   459.a 

2  Thus  in  Vernon  v.  Vernon,  53  N.  Y.  351,  362,  a  testator  who  owned  an 
undivided  half  of  certain  land  directed  his  executors  to  sell  his  own  share 
therein,  at  a  price  fixed  by  him  in  the  will,  or  else  to  take  a  conveyance  of 
the  other  half  from  his  co-owner  at  the  same  price  for  which  he  authorized 
his  own  share  to  be  sold.  The  court  held  that  this  direction  showed  a  clear 
intention  on  the  testator's  part  to  transfer,  in  case  of  a  sale,  the  whole  title 
to  his  own  land,  free  from  any  claim  of  dower;  and  the  widow  was  therefore 
put  to  an  election.  See  also  Savage  v.  Burnham,  17  N.  Y.  561,  577.  In 
Herbert  v.  Wren,  7  Cranch,  370,  379,  there  is  a  dictum  of  Chief  Justice 
Marshall  concerning  the  presumption  as  to  the  testator's  intention,  arising 
from  a  direction  to  sell  the  residue  of  his  real  estate  for  the  purpose  of  pay- 
ing his  debts,  which  would  limit  the  generality  of  the  language  used  by  Vice- 
Chancellor  Wigram,  quoted  in  a  preceding  note.  And  see,  on  this  point, 
Norris  v.  Clark,  10  N.  J.  Eq.  51. 

(»)  Konvalinka  v.  Schlegel,  104  N.  the  New  York  cases,  the  rule  is  thus 

Y.  125,  58  Am.  Rep.  494,  9  N.  E.  868;  laid  down:     "  While  a  mere  power  of 

where  it  was  held  that  no  necessity  sale,  to  be  promptly  exercised  for  the 

for  an  election  existed,  although  the  purpose  of  distribution,  does  not  put 

proceeds  of  the  sale  were  directed  to  the  widow  to  her  election,  the  vesting 

be     divided     between     the     testator's  of    title    in    trustees    not    only    with 

wife  and  children,  "  share  and  share  power  to  sell  and  reinvest,  but  with 

slike."  special   directions   as   to   control    and 

(b)    See,   also,    Bannister   v.    Ban-  management  and  the  payment  over  of 

nister,  37  S.  C.  529,  16  S.  E.  612.    In  the  annual  income  to  the  widow  and 

In  re  Gordon,   172  N.  Y.  25,  92  Am.  children,     during    the    term    of    the 

St.  Rep.  680,  64  N.  E.  753,  reviewing  trust,  we  regard  as  sufficient." 


:833  CONCERNING   ELECTION.  §  500 

§  500.  An  Annuity  or  Rent-charge  Given  to  the  Widow 
•Charged  upon  Lands  Devised  to  Others. —  The  question  as  to 
the  effect  of  an  annuity  or  rent-cliarge  given  to  the  widow, 
and  charged  upon  lands  subject  by  the  law  to  her  dower, 
which  are  at  the  same  time  devised  to  others,  gave  rise  to 
some  discrepancy  among  the  earlier  decisions,  but  has  been 
completely  settled  by  the  whole  current  of  modem  au- 
thority/   The  rule  may  be  regarded  as  firmly  established, 

1 1  shall  depart  from  the  rule  which  I  have  usually  observed,  not  to  refer 
to  or  comment  upon  the  opinions  expressed  by  other  writers,  for  the  purpose 
of  making  a  few  comments  upon  the  doctrine  laid  down  in  a  work  of  great 
value.  In  the  American  edition  of  White  and  Tudor's  Leading  Cases  in 
Equity  (4th  ed.,  vol.  1,  pp.  564r-568),  the  note  of  the  American  editor  draws 
a  distinction  between  wills  creating  an  annuity  for  the  wife  chargeable  on  per- 
sonal and  real  proper'iy  both,  and  wills  creating  a  rent-charge  chargeable  on 
real  estate  alone,  maintains  the  doctrine  that  the  former  kind  of  provision 
alone  creates  uo  necessity  for  an  election  by  the  widow,  while  the  latter  is 
inconsistent  with  a  claim  of  dower,  and  puts  the  widow  to  an  election,  and 
insists  that  all  the  English  cases,  the  most  recent  as  well  as  the  earliest, 
recognize  this  distinction,  and  make  it  the  foundation  of  their  decisions.  I 
•do  not  purpose  to  examine  this  opinion  upon  principle,  but  simply  to  show  the 
•exact  position  of  the  English  cases,  with  reference  to  the  alleged  distinction. 
A  careful  examination  of  the  English  cases  will  show  that,  so  far  from  recog 
nizing  and  upholding  this  distinction  between  an  annuity  and  a  rent-charge, 
they  expressly  reject  it;  not  one  modern  decision  is  based  upon  it;  the 
opinions  uniformly  treat  the  effect  of  the  two  provisions  as  exactly  the  same, 
and  in  certain  of  the  most  important  and  authoritative  cases  the  court  ex- 
amines the  question  and  pronounces  against  the  doctrine,  which  had  been  sug- 
gested in  the  arguments  of  counsel.  It  is  true  that  there  are  a  few  early 
cases  which  have  been  supposed  to  maintain  such  a  view,  and  have  sometimes 
been  regarded  as  authorities  in  support  of  the  distinction.  They  are  Villa 
Real  V.  Lord  Galway,  1  Brown  Ch.  292,  note ;  Amb.  682 ;  Arnold  v.  Kempstead, 
Amb.  466 ;  2  Eden,  236 ;  Wake  v.  Wake,  3  Bro\vn  Ch.  255 ;  and  Jones  v.  Collins, 
Amb.  730.  Of  these,  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  is  tJie 
leading  case.  It  should  be  observed,  however,  that  even  these  cases  are  not 
any  authority  for  the  particular  distinction  which  I  have  described;  so  far 
as  they  bear  upon  the  point,  they  go  too  far,  since  they  purport  to  hold  that 
even  an  annuity  charged  by  the  testator  upon  his  property  is  inconsistent 
with  the  widow's  dower.  But  these  cases,  so  far  as  they  bore  upon  T^his 
question  at  all,  and  attempted  to  lay  down  any  rule  concerning  the  effect  of 
such  a  provision  in  the  will,  have  been  repeatedly  overruled;  if  supported  as 
decisions,  and  recognized  as  authorities  for  any  purpose,  it  is  upon  entirely 
different  and  distinct  matters  and  testamentary  provisions.  The  case  of  Hall 
V.  Hill,  1  Con.  &  L.  129,  decided  by  Sir  Edward  Sugden  when  lord  chancellor 
of  Ireland,  has  been  regarded  by  courts  and  writers  as  of  the  highest  au- 
thority. He  reviews  the  decision  in  Villa  Real  v.  Lord  Galway,  1  Brown  Ch. 
292,  note,  and  says,  concerning  it,  that  Lord  Camden  evidently  intended  to 

Vol.  1  —  53 


§  500  EQUITY   JURISPRUDENCE,  834 

that  an  aimuity  or  a  rent-charge  created  by  the  testator  in 
his  will  in  favor  of  his  widow,  and  charged  upon  lands  in 
which  she  is  otherwise  dowable,  or  upon  his  real  and  per- 
sonal property,  which  are  at  the  same  time  devised  and  be- 
queathed to  others,  is  not  of  itself,  and  without  additional 

put  the  case  simply  and  entirely  upon  the  gift  of  an  annuity,  which  he  held 
was  inconsistent  with  dower :  "  It  is  quite  impossible  to  say  that  Lord  Cam- 
den's authority  has  remained  untouched  on  that  point,  because  the  abstract 
question  is  quite  settled  that  an  annuity  out  of  the  estate  is  now  held  not  to 
have  the  effect  of  barring  the  wife  of  her  dower  as  inconsistent  with  it.  But 
it  is  very  singular  that,  although  this  is  the  perfectly  settled  law  of  the  court, 
all  the  subsequent  authorities  have  taken  care  to  save  whole  the  decision  of 
Lord  Camden  in  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and  hav 
endeavored  and  indeed  have  distinguished  it.  In  Birmingham  v.  Kirwan,  2 
Schoales  &  L.  444,  Lord  Redesdale  put  the  case  upon  all  the  circumstances, — 
the  directions  in  the  will  with  respect  to  the  management  of  the  whole  estate, 
the  payment  of  the  annuity,  and  the  accumulation  during  the  minority  of  the 
child  —  which  circumstances,  in  his  opinion,  were  sufficient  to  authorize  the 
decision.  So,  again.  Lord  Lyndhurst,  in  Roadley  v,  Dixon,  3  Russ.  192,  comes 
to  the  same  conclusion.  Both  held  Villa  Real  v.  Galway,  1  Brown  Ch.  292, 
note,  a  binding  authority,  hut  both  on  a  ground  which  Lord  Camden  cau- 
tiously abstained  from  resting  his  judgment  upon.  I  think,  myself,  that  Villa 
Real  V.  Lord  Galway,  1  Brown  Ch.  292,  note,  may  be  considered  an  authority 
on  the  grounds  suggested;  but  I  cannot  say  that  it  is  an  authority  on  the 
abstract  question,  because  I  consider  that  the  abstract  question  has  been 
decided  the  other  way."  In  Roadley  v.  Dixon,  3  Russ.  192,  the  question  waa 
directly  presented,  and  argued  with  great  fullness.  The  counsel  on  one  side, 
Mr.  Sugden,  afterwards  lord  chancellor,  raises  the  exact  point,  and  shows  that 
no  difference  between  an  annuity  charged  on  property  generally,  and  a  rent- 
charge  on  the  real  estate,  has  been  made  by  the  decisions.  See  pp.  19G-198. 
He  commented  on  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and  the 
three  other  cases  similar  to  it,  and  said:  "  If  it  be  law  that  a  widow  is  put 
to  her  election  by  the  mere  bequest  of  a  rent-charge,  almost  every  judge  of  this 
court  has  been  ignorant  of  one  of  its  most  important  rules;  and  if  such  be 
not  the  law,  the  decision  of  Lord  Camden  cannot  be  sustained."  The  opposing 
counsel,  one  of  the  ablest  equity  lawyers,  and  afterwards  a  distinguished  vice- 
chancellor,  Mr.  Shadwoll,  distinctly  and  expressly  conceded  that  a  mere  rent' 
charge  was  not  inconsistent  with  dower.  He  said  (p.  198)  :  "Villa  Real  v. 
Lord  Galway,  1  Brown  Ch.  292,  note,  has  never  been  overruled;  it  still  must 
be  considered  as  affording  the  rule  of  decision,  whenever  a  like  state  of  facts 
occurs.  The  question  is  not  as  to  the  effect  of  a  simple  bequest  of  a  rent- 
charge,  but  on  the  effect  of  all  the  dispositions  contained  in  the  will."  He 
then  goes  on  to  show  that  in  addition  to  the  rent-charge  upon  a  certain 
specified  estate  devised,  the  will  contains  other  dispositions  inconsistent  with 
dower,  such  as  a  power  of  management  and  occupation  given  to  trustees, 
which,  it  had  been  settled,  are  inconsistent  with  dower;  and  in  this  respect  the 
case  waa  exactly  like  that  of  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292, 
note.     Ljord  Chancellor  Lyndhurst  examined  the  decisions  in  Villa  Real  v. 


835  CONCERNING   ELECTION.  §  500 

provisions  in  the  will  concerning  the  proj)erty  bestowed, 
inconsistent  with  the  widow's  claim  to  dower  in  the  same 
lands,  and  does  not  of  itself,  therefore,  create  the  neces- 
sity for  an  election  between  the  annuity  or  rent-charge  and 
her  dower.^ 

Lord  Galway,  1  Brown  Ch.  292,  note,  and  in  the  other  similar  cases  (pp.  201, 
202).  He  expressly  holds  that  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292, 
note,  cannot  be  supported  upon  the  ground  which  Lord  Camden  took  in  de- 
ciding it,  viz.,  that  an  annuity  or  a  rent-charge  was  inconsistent  with  dower  ^ 
but  nevertheless  that  case  should  not  be  completely  overruled ;  the  decision 
was  correct  upon  all  the  facts  of  the  case,  and  was  a  binding  authority  upon 
the  Bame  condition  of  facts.  What  were  the  facts?  In  addition  to  the  rent- 
charge,  the  will  gave  the  trustees  power  to  hold  and  possess  and  manage  the 
lands  devised,  to  receive  all  the  rents  and  profits,  and  to  accumulate  them 
during  the  minority  of  an  infant,  etc.  These  provisions,  all  taken  together, 
were  inconsistent  with  any  claim  for  dower.  This  examination  demonstrates 
the  following  conclusions:  1.  The  English  decisions  do  not  recognize,  and 
are  not  rested  upon,  any  assumed  distinction  between  the  effect  of  a  rent- 
charge  upon  land  alone,  and  an  annuity  charged  upon  both  personal  and  real 
estate;  2.  The  few  early  cases  which  were  once  regarded  as  furnishing  some 
authority  for  such  a  distinction  have  been  expressly  repudiated,  and  their 
decisions  are  made  to  rest  upon  entirely  different  provisions  in  the  wills; 
3.  The  more  recent  English  cases  cited  in  the  next  note  all  lay  down  exactly 
the  same  rule  with  reference  to  an  annuity  and  a  rent-charge. 

There  may  be  a  few  American  cases  which  recognize  the  distinction,  and 
which  make  it  the  basis  of  decision;  but  it  will  be  seen  that  they  are  nearly, 
if  not  quite,  all  of  them  early  cases,  and  expressly  follow  the  supposed  au- 
thority of  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and  the  others 
of  the  same  class.  The  question  naturally  has  not  often  arisen  in  this  coun- 
try, since  wills  creating  rent-charges  upon  particular  real  estate  are  very 
infrequent. 

2  And  a  clause  giving  her  the  remedy  of  entry  and  distress  in  case  of  non- 
payment is  not  an  additional  provision  which  renders  an  election  necessary: 
Pitts  V.  Snowden,  1  Brown  Ch.  292,  note;  Pearson  v.  Pearson,  1  Brown  Ch. 
291;  Foster  v.  Cook,  3  Brown  Ch.  347;  Birmingham  y.  Kirwan,  2  Schoales  & 
L.  444.  453,  per  Lord  Redesdale;  Hall  v.  Hill,  1  Con.  &  L.  129,  1  Dru.  &  War. 
103,  per  Sir  Edward  Sugden;  Roadley  v.  Dixon,  3  Russ.  192,  201,  202,  per 
Lord  Lyndhurst;  Dowson  v.  Bell,  1  Keen,  761,  per  Lord  Langdale;  Harrison 
V.  Harrison,  1  Keen,  765,  per  Lord  Langdale;  Holdich  v.  Holdich,  2  Younge 
&  C.  18,  per  Knight  Bruce,  V.  C,  The  early  cases  of  Villa  Real  v.  Lord  Gal- 
way, 1  Brown  Ch.  292,  note,  Arnold  v.  Kempstead,  Amb.  466,  2  Eden,  236, 
Jones  V.  Collier,  2  Eden,  730,  and  Wake  v.  Wake,  3  Brown  Ch.  255,  1  Ves.  335, 
BO  far  as  they  lay  down  any  different  doctrine,  have  been  repeatedly  explained, 
limited,  and  overruled.  See  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  453, 
per  Lord  Redesdale;  Hall  v.  Hill,  1  Con.  &  L,  129;  1  Dru.  &  War.  103,  per 
Sir  Edward  Sugden;  Roadley  v.  Dixon,  3  Russ.  192,  201,  202,  per  Lord  Lynd- 
hurst; and  see  the  comments  upon  these  cases  in  the  last  preceding  note. 
The  American  cases  are  few,  but  the  decided  weight  of  authority  is  in  support 


§  501  EQUITY   JURISPBUDENCB.  836 

§  501.  Power  of  Occupying,  Enjoying,  Managing,  and  Leas- 
ing Expressly  Given  to  Devisees. —  The  rule  is  settled  by  the 
English  cases  that  where,  after  or  in  connection  with  a 
provision  for  the  widow's  benefit,  the  testator  expressly 
prescribes  the  mode  in  which  the  lands  devised  shall  be  pos- 
sessed, occupied,  enjoyed,  or  managed  by  the  devisees,  this 
disposition  shows  a  clear  intention  on  his  part  to  give  the 
entirety  of  the  lands,  which  is  inconsistent  with  any  claim 
of  dower,  and  therefore  a  case  for  an  election  is  raised. 
It  is  also  settled  by  a  unanimous  consent  of  the  English 
authorities,  as  a  particular  instance  of  this  rule,  that  where, 
after  a  provision  is  made  for  the  widow,  the  lands  are  de- 
vised to  trustees,  upon  trust,  for  any  purpose,  with  power 
or  directions  given  to  the  trustees  to  occupy,  or  possess,  or 
manage,  or  lease,  or  even  to  cut  down  timber  on  any  part  of 
the  lands,  such  mode  of  disposition  is  inconsistent  with  the 
claim  of  dower,  and  makes  an  election  necessary.  That  a 
power  of  management  and  of  leasing  given  to  the  trustees 
is  inconsistent  with  dower  is  established  by  an  overwhelm- 
ing array  of  decisions.^    In  connection  with  this  form  of 

•of  the  rule  as  settled  by  the  English  courts,  and  as  stated  in  the  text:  Smith 
V.  Kniskern,  4  Johns.  Ch,  9;  and  Adsit  v.  Adsit,  2  Johns.  Ch.  448;  7  Am.  Dec. 
539,  opinion  of  Chancellor  Kent;  Lasher  v.  Lasher,  13  Barb.  106;  Hatch  v. 
Bassett,  52  N.  Y.  359;*  but,  per  contra.  White  v.  White,  16  N.  J.  L.  202,  211; 
31  Am.  Dec.  232. 

1  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444;  Miall  v.  Brain,  4  Madd.  119; 
Butcher  v.  Kemp,  5  Madd.  61;  Goodfellow  v.  Goodfellow,  18  Beav.  356.  In 
Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  a  testator  devised  a  house  and 
pounds  to  trustees,  upon  trust,  to  permit  his  wife  to  enjoy  the  same  for  her 
life,  she  paying  a  small  rent  per  acre  for  the  land,  and  to  keep  the  house  in 
■repair,  and  not  to  let  it,  and  devised  the  residue  of  his  lands  to  third  persons. 
Xiord  Redesdale  held  that  the  disposition  made  for  the  widow  was  inconsistent 
with  her  claim  of  dower  in  the  house  and  grounds  thus  given  for  her  use,  but 
she  was  entitled  to  dower  in  the  residue  devised  to  the  third  persons.  In 
Miall  V.  Brain,  4  Madd.  119,  a  testator  devised  all  his  real  and  personal  estate 
to  trustees,  upon  trust  as  to  a  certain  specified  house  and  groimds,  for  his 
widow  during  her  life,  and  to  pay  her  out  of  the  rents  and  profits  of  the  estate 
.*  certain  annuity  for  her  life,  and  upon  the  further  trust  to  permit  his 
■daughter  to  use,  occupy,  and  enjoy  a  certain  other  house  and  grounds  for  her 

(*)  To  the  same  effect,  see  the  ing  the  English  authorities;  Heirs  of 
recent  cases  of  Ilorstmann  v.  Flege,  Rivers  v.  Gooding,  43  S.  C.  428,  21 
172  N.  Y.  381,  65  N.  E.  202,  review-       S.  E.  310. 


837  CONCEBNING   ELECTION.  §  502 

disposition  the  rule  seems  to  be  settled  by  the  English 
courts,  that  where  a  testator  devises  the  whole  of  his  prop- 
erty together  in  general  terms,  and  it  is  manifest  that  it 
was  his  intention  that  one  part  of  the  property  should  not 
be  subject  to  dower,  it  follows  that  no  part  of  the  property 
embraced  in  the  one  general  disposition  should  be  con- 
sidered as  so  subject.^ 

§  502.  Devise  to  Widow  and  Others  in  Equal  Shares. —  The 
rule  is  also  settled  in  England  by  a  current  of  decisions 
that  where  a  testator  devises  lands,  which  are  by  law  sub- 
ject to  dower,  in  express  terms,  to  his  widow  and  others, — 
as,  for  example,  his  children, —  in  equal  shares,  this  pro- 
vision for  an  equality  among  the  devisees  is  inconsistent 
with  a  claim  of  dower,  and  creates  the  necessity  for  an  elec- 
tion by  the  widow.^  *    Although  this  rule  is  sustained  by  th© 

life,  and  the  residue  was  to  be  divided  among  his  children.  Sir  John  Leach> 
M.  R.,  held  that  the  provision  for  the  daughter  showed  a  plain  intent  to  de- 
vise the  entirety,  and  was  inconsistent  with  any  dower  in  the  same  premises, 
"  and  that  the  same  intention  must  necessarily  be  applied  to  the  whole  estate 
which  passes  by  the  same  devise."  In  Butcher  v.  Kemp,  5  Madd.  61,  a  testator, 
having  devised  some  lands  to  his  wife  for  her  life,  and  given  her  certain 
legacies,  devised  a  farm  to  trustees  during  the  minority  of  his  daughter,  and 
directed  them  to  carry  on  the  business  of  the  farm,  or  let  it  on  lease  during 
the  daughter's  minority.  Sir  John  Leach  held  that  the  widow  was  put  to  her 
election.  "  This  case  is  within  the  principle  of  Miall  v.  Brain,  4  Madd.  119, 
which  was  lately  before  me,  in  which  I  held  the  claim  of  dower  necessarily 
excluded  by  the  gift  of  a  house  for  the  personal  occupation  and  enjoyment  of 
the  testator's  daughter."  The  following  cases  are  authorities  for  the  rule  that 
power  or  direction  given  to  trustees  to  manage  or  lease,  etc.,  is  inconsistent 
with  dower:  Roadley  v.  Dixon,  3  Russ.  192;  Parker  v.  Sowerby,  4  De  Gex, 
M.  &  G.  321;  1  Drew.' 488;  Thompson  v.  Burra,  L.  R.  16  Eq.  592;  Hall  v.  Hill, 
1  Dru.  &  War.  94;  1  Con.  &  L.  120;  Raynard  v.  Spence,  4  Beav.  103;  Taylor  v. 
Taylor,  1  Younge  &  C.  727;  Lowes  v.  Lowes,  5  Hare,  501;  Pepper  v.  Dixon, 
17  Sim.  200;  Grayson  v.  Deakin,  3  De  Gex  &  S.  298;  O'Hara  v.  Chaine,  1 
Jones  &  L.  662 ;  Holdich  v.  Holdich,  2  Younge  &  C.  22.  It  is  upon  this  ground 
that  the  decision  in  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  is  sustained. 

2  Miall  V.  Brain,  4  Madd.  119,  per  Sir  John  Leach;  Roadley  v.  Dixon,  3 
Russ.  192,  per  Lord  Lyndhurst. 

1  Chalmers  v.  Storil,  2  Ves.  &  B.  222;  Dickson  v.  Robinson,  Jacob,  503; 
Roberts  v.  Smith,  1  Sim.  &  St.  513;  Reynolds  v.  Torin,  1  Russ,  129,  133.     In 

(a)    See,  to  the  same  effect,  Dur-  450;   CIoss  v.  Eldert,  37  N.  Y.  Supp^ 

fee's  Petition,  14  R.  I.  47;  In  re  Pur-  353,    16    Misc.    Rep.    104;    Helme   r. 

cell  (R.  I.),  57  Atl.  377;  McGregor  Strater,  52  N.  J.  Eq.  591,  30  Atl.  333. 
V.  McGregor,  20  Grant  (Can.)  C.  Rep. 


§  503  EQUITY   JURISPKUDENCB.  838 

authority  of  several  direct  decisions,  it  cannot  be  reconciled 
with  the  general  principle,  which  underlies  all  cases  of  elec- 
tion between  a  testamentary  disposition  for  the  widow  and 
her  dower, —  the  principle  that  a  testator  is  to  be  presumed 
to  have  intended  to  devise  only  what  belonged  to  him  and 
what  he  was  able  to  give.  The  correctness  of  the  rule  has 
been  repeatedly  questioned.^  ^ 

§  503.  Election  in  Devises  of  Community  Property. —  In 
California  and  a  few  other  states  the  common-law  dower 
has  been  wholly  abolished,  and  a  species  of  interest,  bor- 
rowed from  the  French  and  Spanish  laws,  has  been  intro- 
duced, called  **  community  property."  This  community 
property  embraces  both  what  at  the  common  law  would  be 
real  and  personal  estate,  and  in  fact  substantially  the  same 
rules  govern  the  devolution  of  things  real  and  things  per- 
sonal. The  law  of  these  states  recognizes  two  kinds  of 
property  which  may  belong  to  the  spouses  in  case  of  mar- 
riage,—  the  "separate  property"  and  the  "community 
property."  The  separate  property  of  either  husband  or 
wife  is  what  he  or  she  owned  at  the  time  of  marriage,  and 

Chalmers  v.  Storil,  2  Ves.  &  B.  222,  a  testator  said:  "I  give  to  my  dear 
wife  and  my  two  children  all  my  estates  whatsoever,  to  be  equally  divided 
among  them,  whether  real  or  personal,"  and  afterwards  specified  the  property 
given.  Sir  William  Grant,  M.  R.,  held  that  this  disposition  was  totally  in- 
consistent with  the  claim  of  dower.  "  The  testator  directing  all  his  real  and 
personal  estate  to  be  equally  divided,  the  same  equality  is  intended  to  take 
place  in  the  division  of  the  real  as  of  the  personal  estate,  which  cannot  be 
if  the  widow  takes  out  of  it  her  dower,  and  then  a  third  of  the  remaining 
two  thirds."  In  the  other  cases  cited,  similar  dispositions  were  made  in  the 
wills,  and  the  .same  reasoning  was  used  and  the  same  conclusion  reached  by 
Sir  Thomas  Plumer,  M.  R.,  in  one,  and  by  Sir  John  Leach,  V.  C,  in  another. 
2  Where  the  testator  devises  all  his  estates  to  his  widow  and  children,  to 
be  equally  divided  among  them,  the  general  principle  can  easily  apply,  that 
he  intended  to  devise  only  what  belonged  to  him,  and  that  the  equal  division 
should  therefore  be  made  after  the  widow's  dower  had  been  assigned.  Such 
a  proceeding  would  fully  satisfy  the  language  of  the  will.  See  Ellis  v. 
Lewi.s,  3  Hare,  315;  and  Bending  v.  Bending,  3  Kay  &  J.  261,  per  Page 
Wood,  V.  C. 

(b)  This  paragraph  of  the  toxt  is  lowed,  in  In  re  Hatch's  Estate,  62 
quoted,  and  the  author's  comments  on  Vt.  300,  18  Atl.  814,  22  Am.  St.  Kep. 
vthe    English    rule   approved   and    fol-        109. 


839  CONCERNING   ELECTION.  §  503 

what  he  or  she  acquired  during  marriage  by  inheritance, 
devise,  bequest^  or  gift,  and  the  rents  and  profits  thereof. 
The  separate  property  of  each  spouse  is  wholly  free  from 
all  interest  or  claim  on  the  part  of  the  other,  and  is  entirely 
under  the  management,  control,  and  disposition,  testamen- 
tary or  otherwise,  of  the  spouse  to  whom  it  belongs.  All 
other  property  is  community.  It  is  a  settled  doctrine  that 
all  property  acquired  by  the  husband  after  the  marriage, 
and  during  its  continuance,  is  presumed  to  be  community. 
During  the  marriage  the  husband  alone  has  the  custody, 
control,  management,  and  power  of  disposition  of  the  com- 
munity property,  and  it  is  liable  for  his  debts;  but  still  in 
theory  the  wife  has  an  inchoate,  undivided  interest  in  it 
during  the  entire  coverture,  so  that  the  husband  cannot 
transfer  it  by  mere  gift  or  otherwise  with  the  intent  and 
purpose  of  defrauding  her  of  her  share,  or  of  defeating 
her  exclusive  interest  expectant  upon  his  death."  Upon 
the  death  of  the  wife,  the  entire  community  property  vests 
in  the  husband,  without  the  necessity  of  any  administration. 
Upon  the  death  of  the  husband,  the  community  property  is 
first  subject  to  the  payment  of  debts  and  expenses  of  ad- 
ministration, and  of  the  residue  the  widow  is  entitled  abso- 
lutely to  one  undivided  half,  which  is  partitioned,  and  set 
apart,  and  vested  in  her  in  the  proceedings  for  administer- 
ing upon  the  estate;  while  the  other  half  is  subject  to  the 
testamentary  disposition  of  the  husband,  or  if  he  dies 
intestate,  devolves  upon  specified  persons  as  his  "  heirs." 
In  other  words,  the  husband's  power  extends  only  to  one 
half  of  the  community  property,  and  he  cannot  by  will  de- 
vise or  bequeath  it  in  any  maimer  or  to  any  person  so  as  to 
infringe  upon  the  widow's  vested  right  to  one  half.^  ^  With 
respect  to  the  widow's  election,  whenever  the  husband  has 

1  See  Cal.  Civ.  Code,  |  1402. 

(a)    By   Cal.   Civ.    Code,   see.    172,  (b)   The  greater  part  of  this  para- 
amendment  of  1891,  a  voluntary  con-  graph  is  quoted  in  Pratt  v.  Douglas, 
veyance  of  community  property  is  in-  38  N.  J.  E<j.  616,  535. 
valid  unless  the  wife  joins  therein. 


§  504  EQUITY   JUEISPEUDENCE.  840 

made  a  provision  for  her  benefit,  and  has  assumed  to  dis- 
pose of  all  the  remaining  community  property,  the  Cali- 
fornia code  has  only  legislated  by  prescribing  the  time 
within  which  her  election  must  be  made,  in  cases  where  an 
election  is  necessary,  and  by  declaring  that  certain  con- 
duct by  her  shall  amount  to  an  election.  The  more  import- 
ant question^  when  a  case  for  election  arises  from  the  pro- 
visions of  a  will,  is  left  to  be  determined  by  the  settled 
doctrines  of  equity  jurisprudence  which  deal  with  that 
subject-matter. 

§  504.  In  all  the  cases  which  have  hitherto  arisen  upon 
wills  purporting  to  dispose  of  all  the  community  property, 
or  to  dispose  of  more  than  the  husband's  share,  the  courts' 
of  California  have  proceeded  strictly  upon  the  analogy  be- 
tween the  widow's  interest  in  the  community  property  and 
her  common-law  right  of  dower,  and  have  fully  adopted 
the  general  doctrine  which  has  been  established  in  England 
and  in  many  of  the  American  states  concerning  election 
between  a  testamentary  provision  for  the  widow  and  her 
legal  dower  right.*  It  might,  perhaps,  have  been  argued 
that  there  is  a  close  analogy  between  this  peculiar  kind  of 
ownership  called  community  property  and  the  case  of  a 
testator  who  owns  only  an  undivided  share  in  specific  lands 
which  he  disposes  of  by  his  will,  and  that  the  particular  rule 
established  by  the  English  decisions  in  relation  to  this  latter 
condition  of  fact  might  properly  be  applied  to  a  testamen- 
tary disposition  made  by  a  testator  of  the  entire  community 
property,  of  which  he  is  only  empowered  to  bequeath  an 
undivided  half.  It  is  unnecessary  to  discuss  the  correct- 
ness of  such  a  supposed  analogy;  it  is  enough  to  say  that 
the  courts  have  not  adopted  it,  nor  applied  the  particular 
rule  to  which  I  have  referred.  They  have  expressly  fol- 
lowed the  leading  authorities  dealing  with  the  wife's  dower, 
and  have  extended  to  the  widow's  share  of  the  community 
property  both  the  reasoning  which  has  been  employed  and 

(a)   Tlie  text  is  quoU-d  in  Pratt  t.  Douglas,  38  N.  J.  Eq.  516,  536. 


841  CONCEKNING    ELECTION.  §  505 

the  conclusions  which  have  been  reached  in  regard  to  the 
necessity  of  election  between  a  claim  of  dower  and  the 
benefits  given  by  a  husband's  will. 

§  505.  It  cannot  be  said  that  the  courts  have  settled  any 
special  rules  applicable  to  particular  forms  of  devise  or 
bequest  by  the  husband,  but  the  general  rule  for  the  deter- 
mination of  all  cases  they  have  established  in  a  very  clear 
and  certain  manner.  Whenever  a  husband  has  made  some 
testamentary  provision  for  his  wife,  and  has  also  assumed 
to  dispose  of  more  than  his  own  half  of  the  community 
property,  in  order  that  she  shall  be  put  to  her  election,  the 
testamentary  provision  in  her  behalf  must  either  be  de- 
clared in  express  terms  to  be  given  to  her  in  lieu  of  her  own 
proprietary  right  and  interest  in  the  community  property, 
or  else  an  intention  on  his  part  that  it  shall  be  in  lieu  of 
such  proprietary  right  must  be  deduced  by  clear  and  mani- 
fest implication  from  the  will,  founded  upon  the  fact  that 
the  claim  to  her  share  of  the  community  property  would  be 
inconsistent  with  the  will,  or  so  repugnant  to  its  dispositions 
as  to  disturb  and  defeat  them.  An  intent  of  the  husband  to 
dispose  of  his  wife's  share  of  the  community  property  by 
his  will,  and  thus  to  put  her  to  an  election,  will  not  be 
readily  inferred,  and  will  never  be  inferred  where  the  words 
of  the  gift  may  have  their  fair  and  natural  import  by  ap- 
plying them  only  to  the  one  half  of  the  community  property 
which  he  has  the  power  to  dispose  of  by  will.^ 

1  The  courts  have  expressly  relied  on  and  followed  the  line  of  cases  of 
which  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am,  Dec.  539,  and  Fuller  v.  Yatea, 
8  Paige,  325,  are  examples:  Beard  v.  Knox,  5  Cal.  252,  257;  63  Am.  Dec. 
125;  In  re  Buchanan's  Estate,  8  Cal.  507,  510;  Smith  v.  Smith,  12  Cal.  216, 
225;  73  Am.  Dec.  533;  Scott  v.  Ward,  13  Cal.  458,  469,  470;  Payne  v.  Payne, 
18  Cal.  292,  301;  Burton  v.  Lies,  21  Cal.  87,  91;  Morrison  v.  Bowman,  29  Cal. 
337,  346-348;  In  re  Silvery,  42  Cal.  210;  Broad  v.  Murray,  44  Cal.  229;  King 
V.  Lagrange,  50  Cal.  328 ;  In  re  Estate  of  Frey,  52  Cal.  658.« 

(a)  The  text  is  quoted  in  Pratt  v.  74   Cal,  98,   15  Pac.  445;    Estate  of 

Douglas,  38  N.  J.  Eq.  516,  536.     See,  Smith,    108    Cal.    115,    119,    40    Pac. 

also.  In  re  Gilmore,  81   Cal.  240,  22  1037;  Estate  of  Wickersham,  138  CaL 

Pac.   655;    Estate  of  Gwin,   77    Cal.  355,  363,  70  Pac.  1076;  Moss  v,  Hels- 

313,  19  Pac.  527;  Estate  of  Stewart,  ley,  60  Tex.  426.     In  Pratt  v,  Doug- 


§  506  EQUITY   JURISPRUDENCE.  842 

§  506.  The  Remaining  Questions  Stated. —  I  have  thus  far 
discussed  the  subject  of  election  considered  as  an  equitable 
obligation  resting  upon  a  donee  under  certain  circumstan- 
ces, and  have  described  at  large  the  most  important  in- 
stances in  which  the  necessity  for  an  election  is  created  by 

In  Beard  v.  Knox,  5  Cal.  252,  257,  63  Am.  Dec.  125,  which  is  the  leading 
case  in  the  state,  a  husband,  being  possessed  of  property  worth  twelve 
thousand  five  hundred  dollars,  all  community,  bequeathed  five  hundred  dol- 
lars to  his  wife,  and  all  the  residue  to  a  daughter.  The  widow  brought  this 
action,  claiming  that  she  was  entitled  to  one  half  of  the  entire  estate  of  her 
own  right,  and  also  to  the  legacy  of  five  hundred  dollars,  payable  out  of  the 
one  half  which  was  at  the  disposal  of  her  husband.  It  was  urged  by  the 
defendant  that  by  claiming  and  receiving  the  legacy  she  had  precluded  her- 
self from  asserting  her  legal  right  to  the  statutory  half  of  the  community 
property.  The  court  sustained  her  contention  in  full,  and  held  that  no 
necessity  for  an  election  was  created  by  such  a  disposition.  This  decision 
has  been  reaffirmed  in  all  the  other  cases  cited  above,  several  of  which  are 
similar  in  their  facts.  In  Payne  v.  Payne,  18  Cal.  292,  301,  a  husband, 
leaving  a  wife  and  children,  gave  all  of  his  property,  being  community,  to  his 
wife  absolutely.  The  court  held  that  she  took  one  half  of  the  estate  abso- 
lutely as  of  her  own  right  by  virtue  of  the  community,  and  the  other  one 
half  under  and  by  virtue  of  the  will.  In  the  case  of  Silvery's  Estate,  42 
Cal.  210,  a  husband  left  all  of  his  property,  which  was  entirely  community, 
to  his  wife  for  her  life,  and  after  her  death  the  whole  to  be  equally  divided 
among  his  children.  It  was  argued  for  the  children  that  the  widow  must 
elect;  but  the  court  held  that  the  general  language  of  the  will  must  be 
confined  to  the  one  half  which  the  testator  was  able  to  dispose  of ;  that  the 
widow  took  one  half  absolutely  as  her  own,  and  the  other  half  for  her  life, 
with  remainder  to  the  children,  and  no  necessity  for  an  election  arose.  In 
the  case  of  Frey's  Estate,  52  Cal.  658,  the  testator  gave  one  half  of  all  his 
property,  part  being  his  separate  estate  and  part  community,  to  his  wife, 
and  the  other  half  to  nephews  and  nieces.  The  widow  was  held  not  bound 
to  elect;  the  general  language  of  the  will  must  be  confined  in  its  operation 
to  the  share  of  the  property  which  the  testator  could  bequeath.  King  v. 
Lagrange,  50  Cal.  328,*»  is  a  very  strong  case.  A  testator  owning  land,  all  of 
which  was  community  property,  devised  it  all  to  his  wife,  with  a  power  of 
sale,  however,  given  to  the  executor,  which,  of  course,  was  confined  in  its 
legal  effect  to  the  half  of  the  real  estate  capable  of  being  disposed  of  by  the 
testator.  The  executor,  in  ignorance  of  the  law  concerning  community  prop- 
erty, sold  all  the  land  devised  by  virtue  of  his  power;  the  purchaser,  in  like 
ignorance,  supposed  he  was  buying  the  entire  estate,  and  the  widow,  in  like 
ignorance,  received  the  purchase-money  for  the  whole.     Held,  that  the  widow 

la«,  tupra,  the  courts  of  New  Jersey  the    conclusions    stated    in    the    text 

had   occasion   to   examine  the   law   of  wcro  addptrd  and   approved. 

California  on  the  subject  of  election  (*>)  AfTirmed,  01  Cal.  221. 
in  cases  of  community  property,  and 


843  CONCEENINQ   ELECTION.  §  506 

the  provisions  of  an  instrument  of  donation.  I  shall  finish 
my  treatment  of  the  subject  by  examining  the  various  in- 
cidents which  may  be  connected  with  election  in  any  of  its 
aspects,  and  by  which  the  rights  and  duties  of  the  parties 
who  are  bound  to  elect  are  affected.    The  most  important 

was  not  thereby  precluded  from  setting  up  and  enforcing  a  claim  to  the  hali 
of  the  land  which,  as  community  property,  belonged  to  her  of  her  own  right, 
and  that  the  will  did  not  present  a  case  for  an  election.  Even  if  an  election 
had  been  necessary,  the  acts  of  the  widow,  being  done  in  ignorance  of  the  true 
facts  and  of  her  own  rights,  would  not  have  amounted  to  an  election.  In 
Morrison  v.  Bowman,  29  Cal.  .337,  an  election  was  held  to  be  necessary.  One 
Smith  devised  to  his  wife,  for  her  life,  one  third  of  the  Bodega  rancho,  and 
ihe  house  and  furniture  thereon,  which  rancho  and  all  the  property  thereon 
was  his  separate  estate,  with  remainder  in  fee  to  his  children  bom  from  her, 
and  the  remaining  two  thirds  of  said  rancho  and  property  thereon  he  gave  in 
fee  to  the  same  children.  He  also  o^vned  another  rancho,  which  was  all  com- 
munity property,  called  the  Blucher  rancho.  The  greater  part  of  this  he  gave 
in  specified  portions  for  life  to  children,  remainder  in  fee  to  grandchildren  by 
a  former  wife.  The  will  added  that  a  certain  portion  of  this  Blucher  rancho 
was  left  undisposed  of  by  the  foregoing  provisions;  that  the  testator  intended 
during  his  lifetime  to  sell  such  portion  for  the  purpose  of  raising  funds  to 
pay  oil"  his  debts;  but  if  this  portion,  or  any  of  it,  remainded  unsold,  he 
directed  his  executors  to  sell  the  same  and  pay  debts,  and  any  surplus  which 
should  be  still  remaining  after  the  debts  were  paid,  he  directed  his  executors 
to  distribute,  one  third  to  his  widow  and  the  other  two  thirds  to  his  children 
in  a  prescribed  manner.  The  court,  after  laying  down  the  general  doctrine  as 
stated  in  the  text,  held  that  the  assertion  by  the  widow  of  her  right  to  one 
half  of  the  community  property  would  be  inconsistent  with  and  antagonistic 
to  the  dispositions  made  by  the  testator  to  herself  and  to  his  children  and 
grandchildren,  and  therefore  the  will  created  the  necessity  for  an  election 
by  the  widow.  While  the  opinion  in  this  carefully  considered  case  undoubtedly 
adopts  the  general  doctrine  as  it  has  been  established  by  the  overwhelming 
weight  of  authority,  yet  it  is  more  than  doubtful  whether  this  general  doc- 
trine was  correctly  applied  to  the  facts.  Comparing  the  provisions  of  the 
will  with  those  found  in  very  many  of  the  decisions  based  upon  the  widow'8 
dower,  there  docs  not  seem  to  be  anything  in  the  language  used  by  the  testator 
which  cannot,  in  pursuance  of  the  settled  rule  of  interpretation,  be  confined  in 
its  operation  to  the  share  of  the  community  property  capable  of  being  dis- 
posed of  by  him,  and  thus  no  necessary  antagonism  arises.*:  See  also  the 
following  cases,  decided  by  the  probate  court  of  San  Francisco:    In  re  Estate 

(e)  For  further  instances  of  a  suf-  took   in   terms  to  dispose  of  all   the 

ficient  manifestation  of  intent  to  put  property  of  the  community,  and  de- 

to  an  election,  see  Estate  of  Stewart,  clared  that  the  will  was  made  with 

74   Cal.   98,    15   Pac.   445;    Estate  of  full  knowledge  of  the  property  rights 

Smith,    108    Cal.    115,   40   Pac.    1037.  of  the   husband  and  wife,   and   with 

In  the  latter  case  the  testator  under-  her  consent. 


§  507  EQUITY   JURISPRUDENCE.  844 

of  these  incidents  whicli  remain  to  be  considered  are  the 
following:  1.  The  persons  who  may  elect,  and  especially 
persons  under  disabilities ;  2.  Eights  and  privileges  of  those 
who  are  bound  or  entitled  to  elect ;  3.  Time  of  election ;  4. 
Mode  of  election,  whether  express  or  implied ;  5.  Effect  of 
an  election  upon  third  persons,  and  upon  the  parties  directly 
concerned  in  the  donation;  and  6.  The  equitable  jurisdic- 
tion in  cases  of  election.  It  will  be  found  that  in  many  of 
the  states  the  time,  and  to  a  certain  extent  the  mode,  of 
electing  in  cases  of  dower  —  by  far  the  most  frequent  occa- 
sion for  election  in  this  country  —  have  been  definitely 
fixed  and  regulated  by  positive  statutes ;  and  in  several  of 
the  states  the  whole  subject  of  election  by  widows,  with 
reference  to  their  dower  and  similar  rights,  is  governed  by 
precise  statutory  rules.  The  doctrine  of  election  and  ques- 
tions under  it  are  by  such  legislation  wholly  withdrawn 
from  the  domain  of  equity  jurisprudence  and  jurisdiction  j 
the  rules  are  made  strictly  legal,  and  are  applied  in  the 
ordinary  administration  of  decedents'  estates.  These  stat- 
utes, and  the  effects  produced  by  them,  do  not,  therefore, 
properly  come  within  the  scope  and  purpose  of  a  treatise 
upon  equity  jurisprudence. 

§  507.  Who  may  Elect  —  Persons  under  Disabilities. — 
Wherever  a  case  involves  the  necessity  for  an  election,  it  is 
an  elementary  rule  that  any  person  who  is  siii  juris  —  not 
under  disabilities  —  is  both  entitled  and  bound  to  elect.* 
Thus  we  have  seen  that  an  heir  at  law,  a  widow,  a  devisee, 
appointee,  or  any  other  donee,  if  the  facts  of  the  case  re- 

of  Staus,  Myrick'B  Prob.  Kep.  5;  In  re  Estate  of  Muinford,  Myrick's  Prob. 
Rep.  133;  In  re  Estate  of  Low,  Myrick's  Prob.  Rep.  148;  In  re  Estate  of 
Ricaud,  Myrick's  Prob.  Rep.  158;  In  re  Estate  of  Patton,  Myrick's  Prob.  Rep. 
243.d 

(d)    The    recent     California    cases  a  necessity  for  an  election.     See  Es- 

fully  sustain  the  earlier  decisions,  to  tate  of   Gwin,   77   Cal.   313,    19    Pac. 

the  effect  that  a  devise  or  bequest  of  527;   Estate  of  Gilmore,  81  Cal.  240, 

"  all  the  property  of  which  1  may  die  22  Pac.  G55. 

posseHHed,"  or  of  "all  my  property,"  (a)  The  text  is  quoted  in  Drake  v 

or  of  "all  my  landfl,"  will  not  create  Wild,  (Vt.)  39  Atl.  248. 


845  CONCERNING   ELECTION.  §  508 

quire  an  election,  may  and  must  elect.  The  only  particular 
persons  to  be  considered  are  those  laboring  under  disabili- 
ties or  incapacities  of  legal  status. 

§  508.  Married  Women. —  The  question  has  arisen  ^vhere 
the  common-law  doctrines  concerning  the  legal  incapacities 
of  married  women  still  prevail.  There  has  been  some  con- 
flict of  opinion  with  reference  to  the  competency  of  a  mar- 
ried woman  to  elect,  so  as  to  bind  herself  and  her  property 
without  the  intervention  of  a  court,  or  the  active  participa- 
tion of  her  husband.  It  is  now  settled  that  a  married  wo- 
man is  competent  to  elect  by  her  own  act  without  the 
intervention  of  the  court ;  and  although  the  election  affects 
her  real  estate,  it  need  not  be  by  an  acknowledged  deed. 
There  undoubtedly  are  cases  in  which  a  reference  has  been 
directed  by  the  court  to  inquire  in  which  way  it  would  be 
most  for  the  interest  of  a  married  woman  to  elect  under 
the  circumstances;  but  the  rule  is  now  established,  that,  at 
least  prima  facie,  or  under  ordinary  circumstances,  she  is 
;able  to  elect  for  herself  in  a  valid  and  binding  manner.* 

1  Note  of  Jlr.  Swanston  to  Gretton  v.  Haward,  i  Swanst.  409,  413 ;  Barrow 
T.  Barrow,  4  Kay  &  J.  409,  419;  Ardcsoife  v,  Bennett,  2  Dick.  4G3;  Wil- 
loughby  V.  Middleton,  2  Johns.  &  H.  344;  Anderson  v.  Abbott,  23  Beav.  457; 
Savill  V.  Savill,  2  Coll.  721;  Griggs  v.  Gibson,  L.  R.  1  Eq.  685;  Brown  v. 
Brown,  L.  R.  2  Eq.  481;  but  see  Campbell  v.  Ingilby,  21  Beav.  5G7 ;  Cooper 
V.  Cooper,  L.  R.  7  H.  L.  53,  67 ;  Tiernan  v.  Roland,  15  Pa.  St.  430,  452 ;  Robin- 
son V.  Buck,  71  Pa.  St.  386;  Robertson  v.  Stephens,  1  Ired.  Eq.  247,  251; 
McQueen  v.  McQueen,  2  Jones  Eq.  16;  62  Am.  Dec.  205;  but  see  Kreiser'a 
Appeal,  69  Pa.  St.  194.a 

(«)  See,  also,  Greenhill  v.  North  a  restraint  on  anticipation,  and  con- 
British  &  Mercantile  Ins.  Co.,  [1893]  tained  a  covenant  by  the  wife  (then 
5  Ch.  474;  Harle  v.  Jarman,  [1895]  an  infant)  to  settle  future  property, 
2  Ch.  419;  In  re  Vardon's  Trusts,  held,  that  the  wife  could  not  be  com- 
L.  R.  31  Ch.  D.  275,  reversing  L.  R.  polled  to  elect  between  after-acquired 
28  Ch.  Div.  124,  following  Smith  v.  property  and  her  interest  in  the 
Lucas  (Jessel,  M.  R.),  L.  R.  18  Ch.  settled  fund,  but  was  entitled  to  re- 
Div.  531,  and  In  re  Wheatley,  L.  R.  tain  both.  The  presumption  of  a  gen- 
27  Ch.  Div.  606,  and  disapproving  eral  intention  that  every  part  of  an 
Willoughby  v.  Middleton,  2  J.  «&  H.  instrument  shall  take  effect,  which  is 
344.  In  In  re  Vardon's  Trusts,  a  the  foundation  of  the  doctrine  of  elec- 
marriage  settlement  settled  a  fund  tion,  is  here  held  to  be  rebutted  by 
for  the  separate  use  of  the  wife  with  the  inconsistent  particular  intention 


§  509  EQUITY   JURISPRUDENCE.  846 

If  her  husband  also  has  an  interest  in  the  qaestion,  and 
differs  in  opinion  from  his  wife,  a  difficulty  would  certainly 
exist.^  In  those  American  states  where  the  modern  legisla- 
tion has  destroyed  all  interest  of  the  husband  in  his  wife's 
property,  and  has  clothed  her,  in  respect  to  it,  with  the 
capacities  and  powers  of  a  single  woman,  and  has  enabled 
her  to  manage,  control,  and  even  dispose  of  it,  it  seems  to 
follow,  as  a  necessary  consequence,  that  she  has  the  same 
ability  of  electing  on  her  own  behalf  which  is  possessed  by 
any  person  completely  sui  juris. 

§  509.  Infants. —  It  is  very  clear  that  an  infant  cannot 
elect.  In  cases  where  an  infant,  if  he  had  been  an  adult, 
would  be  bound  to  elect,  the  court  has  sometimes  deferred 
the  question  of  election,  where  this  could  be  done  without 
prejudice  to  the  rights  of  other  parties,  until  the  infant 
came  of  age.^  The  ordinary  rule  is  for  the  court  to  direct 
an  inquiiy  to  be  made  whether  it  is  for  the  infant's  ad- 
vantage to  elect  or  not,  and  what  election  ought  to  be  made. 
In  other  words,  the  court,  as  the  result  of  a  judicial  exami- 
nation, 'itself  makes  the  election  on  the  infant 's  behalf.^  * 

A  married  woman  cannot,  however,  elect  so  as  to  deal  with  or  cut  off  her 
reversionary  things  in  action:  Robinson  v.  Wheelright,  6  De  Gex,  M.  &  G. 
535,  54G;  Whittle  v.  Henning,  2  Phill.  Ch.  731;  Williams  v.  Mayne,  1  I.  R. 
Eq.  519;  but  contra,  Wall  v.  Wall,  15  Sim.  513,  520.1> 

§  508,  2  See  Griggs  v.  Gibson,  L.  R.  1  Eq.  685;  Wall  v.  Wall,  15  Sim.  513, 
621.  A  wife  cannot,  by  her  election,  prejudice  or  affect  her  husband's  marital 
rights:  Brodie  v.  Barry,  2  Ves.  &  B.  127;  see  Lady  Cavan  v.  Pulteney,  2 
Yes.  544;  Rutter  v.  Maclean,  4  Ves.  531. 

§  509,  iStreatfield  v.  Streatfield,  Cas.  t.  Talb.  176;  1  Lead.  Gas.  Eq.,  4th 
Anrw  ed.,  504;  Bor  v.  Bor,  2  Brown  Pari.  C.,  Tomlins's  ed.,  473;  Boughton  v. 
Boughton,  2  Ves.  Sr.  12. 

§  509,  2  Mr.  Swanston's  note  to  Gretton  v.  Haward,  1  Swanat.  409,  413; 
Bigland  v.  Huddleston,  3  Brown  Ch.  285,  note;  Chetwynd  v.  Fleetwood,  1  Brown 
Pari.  C.,  Tomlins's  ed.,  300;  Goodwyn  v.  Goodwyn,  1  Ves.  Sr.  228;   Ebrington 

apparent    in    the    instrument.      See,  (a)   See,  also,  In  re  Lord  Clicsham, 

also,  Hamilton  v.  Hamilton,  [1892]   1  L.    R.    31    Ch.    Div.    406     {dictum). 

Ch.    396,    following    In    re    Vardon's  This  paragraph  of  the  text  is  quotpd, 

Trusts.  in  substance,  in  Pennington  v.  Metro- 

(b)    See,     also,     Ilarle    v.    Jarman,  politan  Museum  of  Art,    (N.  J.  Eq.), 

£1895]  2  Ch.  419.  65  Atl.  408,  by  Magie,  Ch. 


847 


CONCERNING   ELECTION. 


§§  510,  511 


§  510.  Lunatics. —  In  like  maimer,  where  the  person  en- 
titled or  bound  to  elect  is  a  lunatic,  the  court  will  make  the 
election  on  his  behalf,  after  having  ascertained,  through 
an  inquiry,  what  action  is  most  for  his  advantage ;  and  this 
is  the  rule,  even  though  the  lunatic  is  under  the  care  of  a 
committee.^  ^ 

§  511.  Rights  and  Privileges  of  Persons  Bound  to  Elect. — 
It  should  be  carefully  observed  that  the  rules  to  be  men- 
tioned under  this  head  were  established  in  the  absence  of 
any  legislation  upon  the  subject;  they  assume  that  there 

T.  Ebrington,  5  Madd.  117;  Ashbumham  v.  Ashburnham,  13  Jur.  1111;  Brown 
V.  BrovsTi,  L.  R.  2  Eq.  481;  McQueen  v.  McQueen,  2  Jones  Eq.  16;  62  Am. 
Dec.  205;  Addison  v.  Bowie,  2  Bland,  606,  623. 

lln  re  Marriott,  2  Molloy,  516;  Kennedy  v.  Johnson,  65  Pa.  St.  451;  3  Am. 
Rep.  650.  In  this  latter  case  it  was  held  that  the  committee  of  a  lunatic  —  a 
widow  —  cannot  elect  between  the  provisions  of  her  husband's  will  and  her 
dower;  that  it  is  the  duty  of  the  committee  to  apply  to  the  court  for  leave 
to  elect,  and  the  court  will  only  grant  permission  to  elect  in  favor  of  either 
upon  a  due  consideration  of  the  advantages  and  disadvantages  resulting  to 
the  lunatic  from  the  choice. 


(a)  See,  in  support  of  the  text, 
WUder  v.  Pigott,  L.  R.  22  Ch.  Div. 
263 ;  Washburn  v.  Van  Steenwyck,  32 
Minn.  336;  State  v.  Neland,  30  Minn. 
277;  Penhallow  v.  Kimball,  61  N.  H. 
596;  Van  Steenwyck  v.  Washburn,  59 
Wis.  483,  17  N.  W.  289,  48  Am.  Rep. 
632.  In  Van  Steenwyck  v.  Wash- 
burn, 59  Wis.  483,  501,  48  Am.  Rep. 
532,  17  N.  W.  289,  it  was  held  that 
the  provision  of  the  Wisconsin  stat- 
ute (Rev.  Stats.,  sec.  2171)  requiring 
a  widow  to  elect  does  not  apply  to 
an  insane  widow,  and  an  election 
could  not  be  made  by  her,  nor  by  her 
guardian  in  her  behalf.  But  if 
proper  application  be  made,  the  court 
will  make  the  election  for  her;  and 
in  Washburn  v.  Van  Steen^vyck,  32 
Minn.  336,  it  was  held  that  an  elec- 
tion so  made  by  the  court  for  its 
insane  ward  binds  her  as  to  her  dower 
rights  in  lands  in  another  state.  In 
Crenshaw  v.  Carpenter,  69  Ala.  572. 


44  Am.  Rep.  539,  it  was  held  that 
under  the  Alabama  statutes  (Code, 
sec.  2292),  the  right  to  elect  was  per- 
sonal to  the  widow,  and  must  be  ex- 
ercised within  the  time  limited  there- 
for, but  if  she  be  insane,  she  cannot 
dissent  from  the  will;  and  in  a  suit 
for  dower,  brought  after  the  time 
limited  by  the  statute  for  her  to  elect 
to  take  against  the  will,  that  the 
court  could  not  elect  for  her. 
Whether  the  court  of  chancery  had 
jurisdiction  to  elect  for  her,  in  a  suit 
brought  within  the  time  limited  by 
the  statute,  was  expressly  not  de- 
cided. In  State  v.  Neland,  30  Minn. 
277,  it  was  held  that  the  court  might 
make  the  election,  or  direct  her  guard- 
ian to  do  it,  under  the  instructions 
of  the  court.  It  was  further  held 
that  the  power  to  make  the  election 
was  within  the  jurisdiction  of  the 
probate  court. 


§  512  EQUITY   JURISPEUDENCE.  848 

are  no  statutes  prescribing  when  an  election  is  neces- 
sary, or  the  time  within  which  an  election  must  be  made,  or 
that  the  suffering  a  certain  period  of  time  to  elapse  without 
any  affirmative  action  shall  be  regarded  as  an  election. 
Statutes  of  such  a  nature,  at  least  concerning  widows  for 
whom  their  husbands  have  made  testamentary  disposi- 
tions, have  been  enacted  in  very  many  of  the  states,  and 
have  materially  affected  the  equitable  rights  and  privileges 
of  those  persons  who  are,  under  their  provision,  bound  to 
elect. 

§  512.  Subject  to  the  above-stated  limitations,  it  is  a  well- 
settled  rule  of  equity  that  a  person  bound  to  elect  has  a 
right  to  become  fully  informed  of  and  to  know  all  the  facts 
affecting  his  choice,  and  upon  which  a  fair  and  proper  exer- 
cise of  the  power  of  election  can  depend.  To  this  end  he 
has  a  right  to  inquire  into  and  ascertain  all  the  circum- 
stances connected  with  the  two  properties, —  that  is,  his  own 
and  the  one  conferred  upon  him,  and  especially  their  rela- 
tive condition  and  value;  and  he  will  not  be  compelled 
to  elect  until  he  has  made,  or  at  least  has  had  an  opportimity 
to  make,  such  an  examination  as  enables  him  to  learn  the 
truth.^  It  follows  that  where  an  election  has  been  made 
in  ignorance  or  under  a  mistake  as  to  the  real  condition 

1  Dillon  V.  Parker,  1  Swanst.  359,  381,  and  note;  1  Jacob,  505;  1  Clark  & 
F.  303;  Wake  v.  Wake,  1  Ves.  335;  Boynton  v.  Boynton,  1  Brown  Ch.  445; 
Chalmers  v.  Storil,  2  Ves.  &  B.  222;  Neuman  v.  Neuman,  1  Brown  Ch.  186; 
Whistler  v.  Whistler,  2  Ves.  367,  371;  Thurston  v.  Clifton,  21  Beav.  447; 
Wilson  V.  Thornbury,  L.  R.  10  Ch.  239,  248,  249;  Douglas  v.  Douglas,  L.  R. 
12  Eq.  617,  637;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834,  838;  Kreiser's  Appeal, 
69  Pa.  St.  194;  United  States  v.  Duncan,  4  McLean,  99;  Hall  v.  Hall,  2 
McCord  Ch.  269,  280;  Snelgrove  v.  Snelgrove,  4  Desaus.  Eq.  274,  300;  Pinck- 
ney  v.  Pinckney,  2  Rich.  Eq.  219,  237;  Upshaw  v.  Upshaw,  2  Hen.  &  M.  381, 
390;  3  Am.  Dec.  632;  Reaves  v.  Garrett,  34  Ala.  563;  Bradford  v.  Kent,  43 
Pa.  St.  474,  484;  Macknet  v.  Macknet,  29  N.  J.  Eq.  54;  Cox  v.  Rogers, 
77  Pa,.  St.  100;  Waterbury  v.  Netherland,  6  Heisk.  512;  Dabney  v.  Bailey,  42 
Ga.  521 ;  Richart  v.  Richart,  30  Iowa,  465.  In  order  to  enable  him  to  ascer- 
tain the  facts  and  to  make  a  proper  election  in  pursuance  of  the  foregoing 
rule,  a  party  may  maintain  an  equitable  suit  to  have  all  the  necessary 
accounts  of  the  properties  in  question  taken.  See  Mr.  Swanston's  note  to 
Dillon  V.  Parker,  1  Swanst.  359,  381 ;  citing  Butricke  v.  Broadhurst,  3  Brown 
Ch.  88;  1  Ves.  171;  Pusey  v.  Desbouverie,  3  P.  Wms.  315. 


849  CONCEBNINQ   ELECTION.  §  512 

and  value  of  the  properties,  or  under  a  mistake  as  to  the 
real  nature  and  extent  of  the  party  *s  own  rights,  such  a 
mistake  is  regarded  as  one  of  fact,  rather  than  of  law ;  the 
election  itself  is  not  binding,  and  a  court  of  equitable  powers 
will  permit  it  to  be  revoked,  unless  the  rights  of  third  per- 
sons have  intervened  which  would  be  interfered  with  by  the 
revocation.*'    This  particular  rule  must  necessarily  have 

2 Dillon  V.  Parker,  1  Swanst.  359,  381,  note;  1  Clark  &  F.  303;  Pusey  v. 
Desbouverie,  3  P.  Wms.  315;  Wake  v.  Wake,  3  Brown  Ch.  255;  Kidney  v. 
Coussmaker,  12  Ves.  136,  152;  Snelgrove  v.  Snelgrove,  4  Desaus.  Eq.  27:  Hall 
V.  Hall,  2  McCord  Ch.  269,  289;  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  451;  7  Am. 
Dec.  539.  In  Macknet  v.  Macknet,  29  N.  J.  Eq.  54,  it  was  held  that  where  an 
election  by  a  widow  of  dower,  instead  of  a  legacy  given  in  lieu  of  dower,  was 
made  under  a  mistake  as  to  her  rights  under  the  will,  and  as  to  the  amount 
which  she  would  receive  from  the  bequest,  a  court  of  equity  may  allow  her  to 
revoke  her  election,  where  no  prejudice  would  thereby  be  done  to  the  subse- 
quently acquired  rights  of  others.  Such  a  mistake  is  of  fact,  rather  than 
of  law.b  In  Cox  v.  Rogers,  77  Pa.  St.  160,  a  widow  had  by  her  conduct 
unequivocally  elected  in  favor  of  a  legacy  given  to  her  in  lieu  of  her  dower 
in  a  farm  which  her  husband  devised  to  his  son.  Held,  that  after  a  con- 
siderable lapse  of  time  the  election  could  not  be  disturbed,  even  although 
made  in  ignorance  of  her  right.  In  Waterbury  v.  Netherland,  6  Heisk.  512, 
the  statutory  rule  that  a  widow  failing  to  dissent  from  her  husband's  will 
■within  the  prescribed  time  is  conclusively  presumed  to  have  elected  to  take 
under  the  will  was  held  to  be  compulsory  and  binding  upon  a  widow.  Even 
where  she  had  been  erroneously  advised  as  to  the  length  of  the  period  by  one 
of  the  executors, —  an  eminent  lawyer, —  and  had  acted  upon  his  opinion  in 
the  matter,  the  maxim,  Ignorantia  legis  non  excusat,  was  held  to  apply.  In 
Dabney  v.  Bailey,  42  Ga.  521,  it  was  held  that  a  widow  who  had  elected  fco 
take  a  legacy  instead  of  dower,  under  the  erroneous  supposition  that  hei 
husband's  estate  is  solvent,  may,  on  discovering  it  to  be  insolvent,  revoke  her 
election,  and  claim  her  dower.  In  Richart  v.  Richart,  30  Iowa,  4G5,  the  hus- 
band's will  gave  his  widow  one  third  of  the  real  estate  in  lieu  of  dower. 
She  elected  to  take  this  gift,  in  consideration  that  all  the  heirs  should  agree 
to  release  and  assign  to  her  in  addition  one  third  of  the  personal  estate.  A 
part  only  of  the  heirs  finally  consenting  to  this  arrangement,  she  was  held 
not  bound  by  her  election,  but  that  she  could  relinquish  the  testamentarj 

(a)   The  text  is  cited  to  this  effect  N.   J.   L.    442,    41    Atl.    943;    Elbert 

in  Pratt  v.  Douglas,  38  N.  J.  Eq.  516,  v.  O'Neill,   102   Pa.   St.   302;     Wood- 

539;    Standard   Oil   Co,   v.   Hawkins,  burn's   Estate,    138    Pa.    St.    606,    21 

74  Fed.  395,  20  C.  C.  A.  468,  33  L.  K.  Am.  St.  Rep.  932,  21  Atl.  16;  Payton 

A.   739,  46   U.   S.   App.    115;    In   re  v.  Bower,  14  R.  I.  375. 
Wickersham's   Estate,    138   Cal.   355,  (*>)  To  a  similar  effect,  see  Evans's 

363,  70  Pac.  1076.     See,  also,  Austell  Appeal,  51  Conn.  435. 
V.  Swan,  74  Ga.  278;  Hill  v.  Hill,  62 

Vol.  1  —  54 
C 


;§  513  EQUITY  JURISPEUDENCB.  850 

ibeen  materially  modified  by  the  statutes  in  many  states, 
which  declare  in  positive  terms  that  an  election  by  widows 
can  only  be  made  within  a  certain  prescribed  period,  and 
that  if  they  suffer  the  time  to  elapse  without  taking  any 
step,  they  shall  be  deemed  to  have  elected,  or  to  have  aban- 
doned the  right  of  electing;  and  so  the  decisions  seem  to 
hold. 

§  513.  Time  of  Election. —  It  is  almost  impossible  to  sepa- 
rate the  matter  of  time  from  other  circumstances,  and  from 
the  conduct  of  the  party^  so  as  to  arrive  at  any  definite  rule. 
The  only  question  involving  the  element  of  time  is,  What 
is  the  period  during  which  the  continued  acts  of  the  party 
•originally  entitled  to  elect  will  become  binding  upon  him, 
either  as  amounting  to  an  election  by  conduct,  or  as  amount- 
ing to  a  waiver  of  the  right  to  elect?  Under  the  purely 
equitable  doctrines,  unmodified,  by  statute,  there  is,  as  it 
seems,  no  limit  in  point  of  time  to  a  right  to  elect,  unless  it 
ean  be  shown  that  injury  would  result  to  third  persons  by 
delay.*    Nevertheless  it  is  clear  that  by  the  acquiescence 

gift  and  claim  her  dower.  See  also  Light  v.  Light,  21  Pa.  St.  407,  and 
Bradford  v.  Kents,  43  Pa.  St.  475,  as  to  an  election  made  under  a  mistake 
merely  of  the  party's  legal  rights.* 

1  Dillon  V.  Parker,  1  Swanst.  381,  386;  Brice  v.  Brice,  2  Molloy,  21;  Wake 
V.  Wake,  1  Yes.  335;  Butricke  v,  Brodhurst,  3  Brown  Ch.  90;  1  Ves.  172; 
iRejTiard  v.  Spence,  4  Beav.  103;  Sopwith  v.  Maugham,  30  Beav.  235.  In 
Wake  V,  Wake,  1  Ves.  335,  a  widow  had  for  three  years  received  a  legacy  and 
annuity  under  a  will,  in  ignorance  of  her  rights,  and  it  was  held  that  she  had 
not  thereby  elected  nor  lost  her  right  of  electing.  In  Reynard  v.  Spence,  4 
Beav.   103,  a  widow  received,  under  like  circumstances,  an  annuity  for  five 

(«5)  In  Akin  v.  Kellogg,  119  N.  Y.  testator,  charged  with  the  duty  of 
441,  23  N.  E.  1046,  it  was  held  that  informing  herself,  so  as  to  make  her 
the  provision  of  the  New  York  stat-  election,  and  that  if  she  delays  be- 
ute  requiring  an  election  to  be  made  yond  that  time,  before  bringing  her 
within  one  year,  and  declaring  that  action,  the  court  cannot  aid  her,  al- 
the  widow  should  be  deemed  to  have  though  she  was  ignorant  of  the  ex- 
made  election  to  take  under  the  will,  tent  of  her  husband's  estate,  and  was 
unless  within  that  time  she  enter  induced  to  omit  to  take  the  necessary 
upon  the  land  to  be  assigned  to  her  steps  to  claim  dower  by  reason  of  the 
for  dower,  or  commences  proceedings  representations  of  the  executor  and 
for  the  aHHignmcnt  thereof,  has  the  of  the  principal  beneficiary  under  the 
•effect  of  a  sLatute  of  limitations,  and  will  as  to  the  value  of  her  dower 
•  ahe  is  at  once,  on  the  death  of  the  right. 


851  CONCERNING    ELECTION.  §  513 

and  delay  of  the  one  entitled  to  elect,  third  persons  may 
acquire  rights  in  the  property  originally  subject  to  an  elec- 
tion, which  equity  will  not  suffer  to  be  disturbed  by  means 
of  a  subsequent  election.^  It  seems,  on  the  other  hand,  that 
a  person  having  the  right  to  compel  an  election  does  not,  in 
general,  forfeit  the  right  by  a  delay  in  its  enforcement.* 
These  purely  equitable  rules,  at  least  so  far  as  they  affect 
widows  electing  between  testamentary  benefits  and  dower, 
have  been  greatly  modified  by  legislation  in  this  country. 
In  very  many  of  the  states  statutes  have  been  passed  which 
prescribe  definite  periods  of  time  within  which  the  right  of 
election  between  dower  and  a  provision  made  by  will  must 
be  exercised.  These  statutes  are  collected  and  arranged 
according  to  their  several  types  in  the  foot-note.* 

years,  with  the  same  result.  In  Sopwith  v.  Maugham,  30  Beav.  235,  a  widow, 
in  ignorance  of  her  right  of  dower,  had  for  sixteen  years  enjoyed  a  provision 
expressly  given  her  by  will  in  lieu  of  dower;  but  even  after  this  great  lapse 
of  time  she  was  held  not  to  have  elected,  nor  to  have  waived  her  right  oi 
election. 

2Tibbitts  V.  Tibbitts,  19  Ves.  663;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834. 

8  Spread  v.  Morgan,  11  H.  L.  Cas.  588. 

*ln  the  note  under  the  preceding  §  494  I  have  arranged  the  states  i© 
which  statutes  have  changed  the  equitable  doctrines  concerning  election  be- 
tween a  husband's  testamentary  gift  and  dower.  In  the  following  states  the 
doctrines  of  equity  seem  to  be  left  unaltered,  and  are  applied  either  to  the 
widow's  dower,  or  to  her  statutory  portion  given  in  place  of  dower.  In  most 
of  them,  however,  a  certain  period  is  prescribed  within  which  her  election 
must  be  made,  when  such  election  is  necessary. 

Connecticut. —  Gen,  Stats.  1875,  p.  377,  sec,  4:*  Widow  must,  within  two 
months  after  the  expiration  of  the  time  limited  for  the  presentation  of  claims, 
waive  the  testamentary  gift  by  a  writing.  See  Lord  v.  Lord,  23  Conn.  327; 
Hickey  v.  Hickey.  26  Conn.  261. 

Florida. —  Bush's  Dig.,  p.  292,  c.  44,  sec.  1:*  Widow  may  dissent  from 
the  will  within  one  year  after  probate. —  N.  B.  It  is  possible  that  the 
statute  may  be  so  construed  as  to  make  an  election  necessary  whenever  any 
devise  or  bequest  is  given  to  the  widow.  If  so,  this  state  should  belong  in 
the  first  class,  under  §  494,  ante. 

lowa.—  l  Miller's  Rev.  Code,  1880,  p.  624,  sec.  2452:  Widow  must  elect 
within  six  months  after  notice  of  the  provisions  of  the  will.  As  to  when 
election  is  or  is  not  necessary,  see  Metteer  v.  Wiley,  34  Iowa,  215;  Corriel 

(«)  Connecticut. —  Gen.  Stats.  1888,  (*)  Florida. — McClellan's  Dig.  1881, 

sec,  621.  p.  475,  c.  95,  sec.  1. 


§  514  EQUITY   JURISPRUDENCE.  852 

§  514.  Mode  of  Election,  Express  or  Implied  —  What  Con- 
duct Amounts  to  an  Election — Independently  of  the  statutes 
referred  to  in  the  foregoing  paragraph,  which  have  altered 
the  equitable  rules  on  the  subject  in  very  many  states,  an 
election  may  be  either  express  or  implied.  An  express 
election  is  made  by  some  single  unequivocal  act  of  the  party, 
accompanied  by  language  showing  his  intention  to  elect,  and 
the  fact  of  his  electing  in  a  positive,  unmistakable  manner, 
—  as,  for  example,  by  the  execution  of  a  written  instrument 

y.  Ham,  2  Iowa,  552;  Sully  v.  Nebergall,  30  Iowa,  339;  Clark  v.  Griffith,  4 
Iowa,  405;  McGuire  v.  Brown,  41  Iowa,  650.«  Election  by  conduct.  See 
Stoddard  v.  Cutcompt,  41  Iowa,  329.  The  statute  requires  action  on  her  part: 
Kyne  v.  Kyne,  48  Iowa,  21,  24;  and  does  not  apply  to  personal  property: 
In  re  Davis's  Estate,  36  Iowa,  24. 

Kentucky. —  Gen.  Stats.  1873,  p.  373,  sec.  12  :d  Election  against  the  will 
must  be  within  one  year  after  probate.  See  Dawson  v.  Hayes,  1  Met.  (Ky.) 
461;  Bamett's  Adm'r  v.  Barnett,  1  Met.  (Ky.)  257,  258,  259;  Worsley's  Ex'r  v. 
Worsley,  16  B.  Mon.  470. 

New  Hampshire. — Gen.  Stats.  1867,  p.  358,  sec.  13:  Widow  may  elect  against 
the  will  by  a  writing,  but  the  time  within  which  she  must  so  elect  is  not  pre- 
Bcribed.e 

New  York. —  1  Rev.  Stats.,  p.  741,  sees.  13,  14:  Widow  is  deemed  to  have 
elected  to  take  under  the  will,  unless  within  one  year  after  her  husband's 
death  she  begins  proceedings  to  recover  her  dower,  or  enters  on  the  lands 
assigned  for  dower.  See  Lewis  v.  Smith,  9  N.  Y.  504,  511;  61  Am.  Dec.  706; 
Jackson  v,  Churchill,  7  Cow.  287;  17  Am.  Dec.  514;  Hawley  v.  James,  5  Paige, 
318,  447;  Bull  v.  Church,  5  Hill,  206;  Church  v.  Bull,  2  Denio,  430;  43  Am. 
Dec.  754;  Leonard  v.  Steele,  4  Barb.  20.' 

Rhode  Island. —  Gen.  Stats.  1872,  p.  374,  sec.  ll:Br  Widow  must  elect 
against  the  will  by  a  writing  within  one  year  after  probate. 

Vermont. —  Gen.  Stats.  1802-70,  p.  412,  sees.  6,  6:J»  Widow  may  elect 
within  eight  months  after  probate. 

(c)  Iowa. —  McClain's  Code  1888,  (•)  New  Hampshire. —  If  an  elec- 
eec.  3656.  See,  also.  Potter  v.  Wor-  tion  is  necessary,  it  must  be  made 
ley,  57  Iowa,  66,  7  N.  W.  685,  10  N.  W..  seasonably;  Hovey  v.  Hovey,  61  N. 
298;   Blair  v.   Wilson,  57   Iowa,   148,  H.  599. 

10  N.  W.  327;   Snyder  v.  Miller,  67  (')  New  Torfc.— 4  Rev.  Stats.,  8th 

Iowa,  261,  25  N.  W.  240;  Daughcrty  ed.,   p.   2455.      See  Akin   v.   Kellogg, 

T.    Daugherty,   69    Iowa,   079,    29    N.  119   N.   Y.  441,  23  N.   E.    1046    (has 

W.  778;    Estate  of  Blaney,  73  Iowa,  effect  of  a  statute  of  limitations). 
114,  34  N.  W.  768;   Howard  v.  Wat-  (K)     Rhode     Island.— Pub.     Stat*, 

•on,  76  Iowa,  229,  41  N.  W.  45.  1882,  p.  472,  sec.  11. 

(d)  Kentucky.— Gtn.  SUU.  1887,  (•»)  Vermont.— Rer.  Laws  1880, 
•.31.  Bee.  2219. 


853  CONCERNING    ELECTION.  §  515 

declaring  the  election.  A.s  the  election  becomes  fixed  by 
such  a  definite  act,  and  at  such  precise  time,  no  questions 
concerning  it  can  arise. 

§  515.  Implied. —  An  election  may  also  be  implied  —  that 
is,  inferred  —  from  the  conduct  of  the  party,  his  acts,  omis- 
sions, modes  of  dealing  with  either  property,  acceptance  of 
rents  and  profits,  and  the  like.  Courts  of  equity  have  never 
laid  down  any  rule  determining  for  all  cases  what  conduct 
shall  amount  to  an  implied  election,  but  each  case  must 
depend  in  great  measure  upon  its  own  circumstances.^  The 
following  rules,  however,  have  been  fairly  settled  by  the 
courts  as  guides  in  determining  the  general  question.  To 
raise  an  inference  of  election  from  the  party's  conduct 
merely,  it  must  appear  that  he  knew  of  his  right  to  elect, 
and  not  merely  of  the  instrument  giving  such  right.^  and 
that  he  had  full  knowledge  of  all  the  facts  concerning  the 
properties.^  As  an  election  is  necessarily  a  definite  choice 
by  the  party  to  take  one  of  the  properties  and  to  reject  the 
other,  his  conduct,  in  order  that  an  election  may  be  inferred, 
must  be  done  with  an  intention  to  elect,  and  must  shoiv  such 
an  intention.     The  intention,  however,  may  be  inferred  from 

1  See  note  to  Dillon  v.  Parker,  1  Swanst.  359,  381,  382,  and  cases  there 
«ited;  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307;  Whitridge  v.  Park- 
hurst,  20  Md.  62,  72.  In  Padbury  v.  Clark,  2  Macn.  &  G.  298,  Lord  Cotten- 
ham  said :  "  If  a  party,  being  bound  to  elect  between  two  properties,  not  being 
called  upon  so  to  elect  by  the  other  parties  interested,  continues  in  the  receipt 
of  the  rents  and  profits  of  both,  such  receipt,  affording  no  proof  of  prefer- 
ence, cannot  be  an  election  to  take  the  one  and  reject  the  other;  and  so  if 
the  other  property  be  under  circumstances  that  it  does  not  yield  rent  to  be 
received  by  the  party  liable  to  elect,  but  such  party,  particularly  if  with  the 
knowledge  and  consent  of  the  one  who  is  entitled  to  call  for  such  election, 
deal  with  this  property  as  his  own,  it  would  seem  that  such  acts  ought  to  be 
•qually  unavailable  to  prove  an  actual  election ;  for  in  both  cases  there  is, 
«8  far  as  circumstances  will  admit,  an  equal  dealing  with  the  two  properties, 
and  therefore  an  absence  of  proof  of  any  intention  to  elect  the  one  and  reject 
the   other." 

a  Edwards  v.  Morgan,  1  Bligh,  N.  S.,  401;  Briscoe  v.  Briscoe,  1  Jones  &  L. 
334,  7  I.  R.  Eq.  123;    Sweetman  v.  Sweetman,  2  I.  R.  Eq.  141. 

3  Sopwith  V.  Maugham,  30  Beav.  235 ;  Worthington  v.  Wigginton,  20  Bear. 
^7;  and  see  ante,  §  512,  and  cases  cited  in  note. 


§  515  EQUITY   JURISPKUDENCB.  854 

a  series  of  unequivocal  acts.* "  In  applying  these  general 
rules,  the  following  particular  conclusions  as  to  what  conduct 
may  or  may  not  amount  to  an  election  seem  to  have  been 
definitely  reached :  Where  a  person,  bound  to  elect  between 
two  properties,  continues  in  possession,  or  enjoyment,  or 
receipt  of  the  rents  and  profits  of  both,  without  being  called 
upon  by  the  other  party  interested  to  elect,  this  conduct 
indicates  no  intention  of  taking  one  and  rejecting  the  other, 
and  does  not  therefore  amount  to  an  election.^  ^  Taking  the 
interest  or  income  of  one  fund  or  property  only  is,  in  gen- 
eral, an  election  to  take  the  fund  or  property  producing  the 
interest  or  income.®  Settling  one  of  two  funds,  between 
which  the  settlor  is  bound  to  elect,  is  an  election  to  take  the 
fund  so  settled.^  Suffering  a  recovery  of  lands  devised  in 
tail  is  an  election  to  take  those  lands.®  A  recital  in  a  deed 
may  amount  to  an  election  or  be  evidence  of  an  election.®  I 
have  collected  in  the  foot-note  the  important  cases  which 
deal  with  the  question  of  an  election  implied  from  the  con- 
duct of  the  party  who  is  entitled  or  bound  to  elect.^*^    The 

4  Spread  v.  Morgan,  11  H.  L.  Cas.  588;  Dillon  v.  Parker,  1  Swanst.  359, 
380,  387;  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307;  Worthington  v. 
Wigginton,  20  Bcav.  67;  Campbell  v.  Ingilby,  21  Beav,  582;  Stratford  v. 
Powell,  1  Ball  &  B.  1 ;  Edwards  v.  Morgan,  McClel.  541,  13  Price,  782,  1 
Bligh,  N.  S.,  401. 

8  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307;  Spread  v.  Morgan,  11  H.  I*. 
Cas.  588;   Whitridge  v.  Parkhurst,  20  Md.  62,  72. 

«Ardesoife  v,  Bennett,  2  Dick.  403;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834. 

T  Briscoe  v.  Briscoe.  1  Jones  &  L.  334. 

SGiddings  v,  Giddings,  3  Buss.  241. 

»  Dillon  V.  Parker,  1  Jacob,  505;  1  Clark  &  F.  303. 

10 Dillon  V.  Parker,  1  Swanst.  359,  381,  382,  and  note;  Wilson  v.  Tliont- 
bury,  L.  R.  10  Ch.  239,  248,  249;  Dewar  v.  Maitland.  L.  R.  2  Eq.  834;  Pad- 
bury  V.  Clark.  2  Macn.  &  G.  298;  Brice  v.  Brice,  2  Molloy,  21;  Giddings  v. 
Giddings,  3  Russ.  241;  Miller  v.  Thurgood,  33  Beav.  496;  Fitzsimmons  v. 
Fitzsimmons,  28  Beav.  417;  Iloneywood  v.  Forster,  30  Beav.  14;  Howells 
V.  Jenkins,  2  Johns.  &  H.  706;  1  De  Gcx,  J.  &  G.  017;  Spread  v.  Morgan,  11 

(a)    The    text   is    quoted   and    the  N.  J.  Eq.  279,  20  Atl.  961,  12  L.  R. 

rules   there   stated   adopted,   in   Bur-  A.  62. 

TougliH  V.  De  Couts,  70  Cal.   371,   11  (b)   The  text  is  cited  to  this  efToct 

Pac.  734;  In  re  Smith,  108  Cal.  115,  in   Madden  v.  Louisville,  N.  O.  &  T. 

120,  40  Pac.  1037;  and  cited,  in  R'y  Co.,  00  JMisa,  258,  6  South.  181. 
MorBe    V.    liuckeuBack    Sav.    Bk.,    47 


855  CONCERNING    ELECTION.  §  51& 

rule  seems  to  be  plainly  deducible  from  the  American  cases 
which  are  placed  in  the  note,  that  where  a  widow  is  required 
to  elect  between  a  testamentary  provision  in  her  favor  and 
her  dower,  any  unequivocal  act  of  dealing  with  the  prop- 
erty given  by  the  will  as  her  own,  or  the  exercise  of  any 
unmistakable  act  of  ownership  over  it,  if  done  with  knowl- 
edge of  her  right  to  elect,  and  not  through  a  clear  mistake 
as  to  the  condition  and  value  of  the  property,  will  be  deemed 
an  election  by  her  to  take  under  the  will,  and  to  reject  her 
dower.*^ 

§  516.  Effects  of  an  Election. —  The  effects  of  an  election 
when  once  made  are  to  be  considered  with  reference  to  two 
different  classes  of  persons,  namely,  those  who  succeed,  or 
represent,  or  derive  title  from  the  party  making  the  elec- 
tion, and  those  who  are  originally  interested  in  the  prop- 

H.  L.  Cas.  588;  Reynard  v.  Spence,  4  Beav.  103;  Sopwith  v.  Maugham,  30 
Beav.  235;  Wake  v.  Wake,  1  Ves.  335;  Butricke  v.  Brodhurst,  3  Brown  Ch. 
90;  1  Ves.  172;  Tibbitts  v.  Tibbitts,  19  Ves.  663;  Whitridge  v.  Parkhurst,  20 
Md.  62,  72;  Marriott  v.  Sam  Badger,  5  Md.  306;  Upshaw  v.  Upshaw,  2  Hen. 
&  M.  381;  3  Am.  Dec.  632;  Caston  v.  Caston,  2  Rich.  Eq.  1;  Binst  v.  Dawes, 
3  Rich.  Eq.  281;  Bradford  v.  Kent,  43  Pa.  St.  474,  484;  Anderson's  Appeal, 
36  Pa.  St.  476;  Adliun  v.  Yard,  1  Rawle,  163,  171;  18  Am.  Dec.  608;  Heron 
V.  Hoffner,  3  Rawle,  393,  396;  Cauffman  v.  Cauffman,  17  Serg.  &  R.  16,  25; 
Wilson  V.  Hamilton,  9  Serg.  &  R.  424;  O'DriscoU  v.  Koger,  2  Desaus.  Eq.  295, 
299;  Snelgrove  v.  Snelgrove,  4  Desaus.  Eq.  274,  300;  Shaw  v.  Shaw,  2  Dana, 
342;  Clay  v.  Hart,  7  Dana,  1,  6;  Watkins  v.  Watkins,  7  Serg.  283;  Reaves 
V.  Garrett,  34  Ala.  563;  Kinnaird  v.  Williams's  Adm'r,  8  Leigh,  400;  31  Am. 
Dec.  658;  Stark  v.  Hunton,  1  N.  J.  Eq.  217,  227;  Sloan  v.  Whitaker,  58  Ga. 
319;  Sewell  v.  Smith,  54  Ga.  567;  Stoddard  v.  Cutcompt,  41  Iowa,  329;  Cox 
V.  Rogers,  77  Pa.  St.  160;  Camden  Mut.  Ins.  Co.  v.  Jones,  23  N.  J.  Eq.  171; 
Crocker  v.  Beal,  1  Low.  416.c 

(c)  See,  also,  Estate  of  Stewart,  74  Guggenheimer,  76  Va.  839,  850;  Bur- 
Cal.  98,  15  Pac.  445;  Estate  of  Smith,  roughs  v.  De  Couts,  70  Cal.  361,  11 
108  Cal.  115,  121,  40  Pac.  1U37;  Pac.  734;  In  re  Smith,  108  Cal.  115, 
Churchill  v.  Bee,  66  Ga,  621;  John-  121,  40  Pac.  1037  (no  election  mani- 
Bton  V.  Duncan,  67  Ga.  61;  Forester  fested).  A  widow,  by  becoming  ex- 
V.  Watford,  67  Ga.  508;  Cimning-  ecutrix  of  her  husband's  will,  is  not 
ham's  Estate,  137  Pa.  St.  621,  21  thereby  estopped  to  afterwards  make 
Am.  St.  Rep.  901,  20  Atl.  714;  Pay-  an  election:  Estate  of  Gwin,  77  Cal. 
ton  V.  Bowen,  14  R.  I.  375;  Penu  v.  313,  19  Pac.  527;  Pratt  v.  Douglas, 
Guggenheimer,  76  Va.  839;  Cooper  38  N.  J.  Eq.  516,  538;  Benedict  v, 
V.  Cooper,  77  Va.  198.  VVilmarth   (Fla.),  35  South.  84. 

(d)  The  text  is  quoted  in  Penn  y. 


§  517  EQUITY   JURISPRUDENCE.  856 

«rty  subject  to  the  election  by  reason  of  being  beneficiaries 
under  the  instrument  of  donation,  and  whose  interests  are 
therefore  directly  affected  by  the  election.  Where  an  elec- 
tion is  once  made  by  the  party  bound  to  elect,  either  ex- 
pressly or  inferred  from  his  conduct,  it  binds  not  only 
himself,  but  also  those  parties  who  claim  under  him,  his 
representatives  and  heirs.^  °  Wherever  the  person  bound  to 
elect  is  entitled  only  to  a  life  estate  in  the  property,  or  to 
any  other  prior  interest,  his  election  does  not  bind  the  one 
entitled  in  remainder  to  the  same  property.'  And  where 
several  individuals  constituting  a  class  —  as  the  next  of 
kin  —  are  entitled  to  elect,  each  has  a  separate  right  of 
election;  an  election  by  any  of  them  does  not  affect  the 
rights  of  others.' 

§  517.  The  other  parties  Interested  as  donees  under  the 
instrument  creating  the  necessity  for  an  election  are  af- 
fected by  it,  when  made,  in  the  following  manner:  If  the 
person  on  whom  the  duty  of  electing  rests  elects  to  take 
in  conformity  with  the  will  or  other  instrument  of  donation, 
he  thereby  relinquishes  his  own  property,  and  must  release 
or  convey  it  to  the  donee  upon  whom  the  instrument  had 
assumed  to  confer  it.*    If  he  elects  against  the  will  ^r  other 

1  Earl  of  Northumberland  v.  Earl  of  Aylesford,  Amb.  540,  657 ;  Dewar  v. 
Maitland,  L.  R.  2  Eq.  834;  Stratford  v.  Powell,  1  Ball  &  B.  1 ;  Ardesoife  v. 
Bennett,  2  Dick.  463;  and  see,  with  respect  to  acts  binding  upon  the  repre- 
sentatives, Tomkyns  v.  Ladbroke,  2  Ves.  Sr.  593;  Worthington  v.  Wiginton, 
20  Beav.  67;  Sopwith  v.  Maugham,  30  Beav.  235,  239;  Whitley  v.  Whitley, 
31  Beav.  173.  Where  the  party  bound  to  elect  has  not  definitely  elected  in 
his  lifetime,  his  representatives  who  have  accepted  benefits  under  the  instru- 
ment of  donation,  but  have  not  themselves  explicitly  elected,  may,  if  they 
can  offer  compensation,  and  can  place  the  other  party  in  the  same  situation 
as  if  such  benefits  had  not  been  accepted,  renounce  those  benefits,  and  deter- 
mine the  question  of  election  for  themselves:  Dillon  v.  Parker,  1  Swanst.  385; 
Moore  v.  Butler,  2  Schoales  &  L.  268;  Tysson  v.  Benyon,  2  Brown  Ch.  5. 

2  Ward  V.  Baugh,  4  Ves.  623 ;  Ijong  v.  Long,  5  Vea.  445 ;  and  see  Hutchin- 
Bon  V.   Skelton,  2  Macq.  492,  495. 

«  Fytche  v.  Fytche,  L.  R.  7  Eq.  494 ;   Ward  v.  Baugh,  4  Ves,  623. 

8  516,    (a)   The  text  is  quoted  in  an  equitable  interest  in  the  property 

Penn  v.  Giiggenheimer,  76  Va.  839,851.  of  the  person  who  has  made  the  elec- 

§  517,   (a)  Hut  without  sucli  rolfnae  tion ;   an   interest  which   may  be  de- 

4>r  coavoyunce  the  douce  obtains  only  feated  by  a  conveyance  of  the  legal 


857  CONCERNING    ELECTION".  §  517 

iBstrument  of  donation,  he  thereby  retains  his  own  prop- 
erty, and  must  compensate  the  disappointed  donee  out  of 
the  estate  given  to  himself  by  the  donor.  A  court  of  equity 
will  then  sequester  the  benefits  intended  for  the  electing 
beneficiary,  in  order  to  secure  compensation  to  those  per- 
sons whom  his  election  disappoints.^  •*  This  rule  is  applied 
in  many  of  the  American  cases  cited  below  to  elections 
made  by  widows  in  favor  of  their  dower  and  against  the 
testamentary  provisions,  whereby  the  interests  of  other 
devisees  were  disturbed.  Such  disappointed  devisees  are 
held  entitled  to  compensation  out  of  the  benefits  intended  to 
be  conferred  by  the  will  on  the  widow,  but  which  she  had 
rejected. 

1  See  this  rule  discussed  ante,  in  §§  467,  468;  Gretton  v.  Haward,  1  Swanst. 
409,  423,  433,  and  note  by  Mr.  Swanston;  Rogers  v.  Jones,  3  Ch.  Div.  688, 
689;  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  173;  Howells  v.  Jenkins,  1  De 
Gex,  J.  &  S.  617,  619;  Spread  v.  Morgan,  11  H.  L.  Cas.  588;  Streatfield  v. 
fitreatfield,  Cas.  t.  Talb.  176;  Bor  v.  Bor,  3  Brown  Pari.  C,  Tomlins's  ed., 
167;  Ardesoife  v.  Bennett,  2  Dick.  405;  Lewis  v.  King.  2  Brown  Ch.  600; 
Freke  v.  Barrington,  3  Brown  Ch.  284;  Whistler  v.  Webster,  2  Ves.  372; 
Ward  V.  Baugh,  4  Ves.  627;  Lady  Caven  v.  Pulteney,  2  Ves.  560;  Blake  v. 
Bunbury,  1  Ves.  523;  Welby  v.  Welby,  2  Ves.  &  B.  190,  191;  Dashwood 
V.  Peyton,  18  Ves.  49;  Tibbitts  v.  Tibbitts,  Jacob,  317;  Lord  Rancliflfe  v. 
Parkyns,  6  Dow,  179;  Ker  v.  Wauchope,  1  Bligh,  25;  Padbury  v.  Clark,  2 
Macn.  &  G.  298 ;  Greenwood  v.  Penny,  12  Beav.  403 ;  Codrington  v.  Lindsay, 
•L.  R.  8  Ch.  578;  Griggs  v.  Gibson,  L.  R.  1  Eq.  685;  Palmer  v.  Wakefield, 
3  Beav.  227 ;  Giddings  v.  Giddings,  3  Russ.  241 ;  CauflFman  v.  Cauffman,  17 
Serg.  &  R.  16,  24,  25;  Philadelphia  v.  Davis,  1  Whart,  490,  502;  Stump  v. 
rindlay,  2  Rawle,  168,  174;  19  Am.  Dec.  632;  Lewis  v.  Lewis,  13  Pa.  St.  79, 
82;  53  Am.  Dec.  443;  Van  Dyke's  Appeal,  60  Pa.  St.  490;  Sandoe's  Appeal, 
65  Pa.  St.  314;  Key  v.  Griffen,  1  Rich.  Eq.  67;  Marriott  v.  Sam  Badger,  5 
l^d.  306;  Maskell  v.  Goodall,  2  Disn.  282;  Roe  v.  Roe,  21  N.  J.  Eq.  253; 
Estate  of  Delaney,  49  Cal.  77;  Tiernan  v.  Roland,  15  Pa.  St.  430,  451; 
Wilbanks  v.  Wilbanks,  18  111.  17;  Jennings  v.  Jennings,  21  Ohio  St.  56;  Allen 
▼,  Hannum.  15  Kan.  625. 

«state  to  a  bona  fide  purchaser.  The  and  it  is  immaterial  whether  what 
statutory  notice  of  an  election  to  take  he  takes  turns  out  to  be  of  greater 
UTjder  the  will  does  not  operate  as  a  or  less  value  than  his  claim:  Caul- 
conveyance.  See  Hibbs  v.  Insurance  field  v.  Sullivan,  85  N.  Y.  153.  See, 
Co.,  40  Ohio  St.  543.  When  a  bene-  also,  Lee  v.  Tower,  124  N.  Y.  370,  26 
ficiary  under  a  will  is  put  to  an  elec-  N.  E.  943. 

tion   between   the   gift   and  a   claim  (b)  The  text  is  cited  to  this  effect 

against  the  estate,  his  acceptance  of  in  Brown  v.  Brown,  42  Minn.  270,  44 

the  gift  is  a  satisfaction  of  the  claim,  N.  W.  250. 


§§  518,  519  EQUITY   JUEISPEUDENCE.  858 

§  518.  Equitable  Jurisdiction  in  Matters  of  Election. —  In 
England,  where  the  original  general  jurisdiction  over  the 
administration  of  decedents'  estates  is  still  preserved,  the 
question  of  election  under  the  provisions  of  a  will  usually 
arises  as  an  incident  of  the  administration,  and  thus  comes 
within  the  cognizance  of  the  court  as  a  part  of  or  a  step  in 
the  administration.  In  the  American  states,  the  power  to 
entertain  a  suit  for  the  purpose  of  compelling  an  election 
may,  perhaps,  be  sustained  as  one  of  those  special  matters 
connected  with  administrations  which  have  not  been  sur- 
rendered to  the  statutory  courts  of  probate,  and  which  are 
still  retained  by  courts  of  equity.  Whether  this  be  so  or 
not,  it  is  well  settled  that,  wholly  independent  of  the  gen- 
eral power  over  administrations,  an  equitable  jurisdiction 
exists  to  entertain  a  suit  on  behalf  of  the  other  parties 
interested  as  beneficiaries  against  the  donee  upon  whom  the 
duty  of  electing  is  imposed  by  the  instrument  of  donation, 
for  the  purpose  of  compelling  him  to  make  an  election. 
The  jurisdiction  to  entertain  such  a  suit  embraces  the  power 
to  determine  whether  the  necessity  for  an  election  exists, 
and  after  the  election  is  actually  made,  to  ascertain,  adjust, 
and  secure  the  rights  of  all  the  parties  interested  which 
are  affected  by  it,  by  means  of  compensation  or  otherwise. 
This  special  jurisdiction  has  sometimes  been  referred  to 
that  existing  over  trusts,  because,  when  the  election  is  made 
by  the  defendant,  a  trust  in  favor  of  the  plaintiff  is  im- 
pressed upon  the  property  rejected.* 

§  519.  Conversely,  the  rule  has  been  stated  in  the  most 
general  manner,  that  the  jurisdiction  always  exists,  and 
Tvill  be  exercised,  to  entertain  a  suit  on  behalf  of  the  person 
bound  to  elect,  for  the  purpose  of  having  the  necessary  ac- 
counts taken,  so  that  he  may  be  informed  of  the  real  value 
and  condition  of  the  property  and  enabled  to  exercise  his 
right  of  election  in  a  proper  manner.    The  latest  English 

1  Many  of  the  caaeR  heretofore  cited  in  this  section  were  suits  of  such  a 
nature  brouf^ht  to  enforce  an  election.  See  Douglas  v.  Doughis,  L.  R.  12  ]']q. 
617,  037;  Dillon  v.  J'arker,  1  Swanst.  381,  note  by  Mr.  Swanston;  Van  Dykes 
Appeal,  60  Pa.  St.  481,  489,  per  yharswood,  J. 


859  CONCEBNING   ELECTION.  §  519 

decision  on  this  subject,  however,  while  conceding  that  such 
a  jurisdiction  will  be  exercised  under  all  ordinary  circum- 
stances, holds  that  in  certain  special  cases  the  suit  would 
not  be  maintained.'  In  several  of  the  American  states, 
where  the  general  doctrines  of  equity  concerning  the  elec- 
tion by  widows  between  their  dower  and  a  testamentary 
provision  have  been  greatly  modified  by  statute,  and  definite 
statutory  rules  have  been  substituted  in  their  stead,  as 
shown  in  a  previous  paragraph,  the  courts  of  probate  have 
jurisdiction  to  determine  all  such  matters  of  election,  and 
to  decide  upon  the  rights  of  widows  and  other  parties  inter- 
ested, in  the  ordinary  proceedings  for  administering,  set- 
tling, and  distributing  the  estate,  or  in  the  proceedings  for 
assigning  the  widow's  dower.  This  purely  statutory  juris- 
diction does  not,  however,  seem  to  embrace  other  and  more 
general  cases  calling  for  an  election. 

1  Dillon  V,  Parker,  1  Swanst.  381,  note  by  Mr.  Swanston;  Butricke  v.  Broad- 
hurst,  3  Brown  Ch.  88;  1  Ves.  171,  172,  per  Lord  Thurlow;  Pusey  v.  Desbou- 
verie,  3  P.  Wms.  315;  Douglas  v.  Douglas,  L.  R.  12  Eq.  617,  637,  per  Wickena, 
V.  C.  In  this  last  case,  the  court  said  (p.  637)  :  "  It  is  perhaps  too  broadly 
stated  by  Lord  Thurlow,  in  Butricke  v.  Broadhurst,  3  Brown  Ch.  88,  whose 
dictum  has  been  adopted  by  Mr.  Swanston  in  his  note  to  Dillon  v.  Parker,  1 
Swanst.  381,  that  the  court  of  chancery  will  in  all  cases  entertain  a  suit  by  a 
person  put  to  an  election  to  ascertain  the  value  of  the  objects  between  which 
election  is  to  be  made.  No  doubt  there  is,  in  almost  all  cases,  jurisdiction  in 
equity  to  compel  a  final  election,  so  as  to  quiet  the  title  of  those  interested  in 
the  objects  of  which  one  is  to  be  chosen;  and  the  court,  as  a  condition  of 
compelling  such  a  final  election,  secures  to  the  person  compelled  to  make  it 
all  the  information  necessary  to  guide  him  in  doing  so.  It  is  also  generally, 
though  perliaps  not  universally,  true  that  a  person  for  whose  benefit  con- 
ditions will  be  imposed  by  the  court  before  it  makes  an  order  against  him  can 
entitle  himself  to  the  benefit  of  the  conditions  by  filing  a  bill  and  offering  by 
it.  to  submit  to  the  order."  So  far  as  these  remarks  tend  to  restrict  the  juris- 
diction, they  are  confessedly  a  mere  dictum,  not  at  all  necessary  to  the  actual 
decision  made  in  the  case. 


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